Free Traffic Legal Advice
Live cases legal advice => Civil penalty charge notices (Councils, TFL and so on) => Topic started by: LoneStartState on April 18, 2024, 11:45:31 pm
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Appeal was dismissed. C'est la vie.
Unfortunately I left myself very little time to write the skeleton argument/response to council submissions and so only uploaded it Monday morning 48 hours prior to the hearing. Already risking an adjournment but the council rep stated they had read it.
My argumentation re the camera certificate was probably not optimal so that fell by the wayside.
De minimis seemed to be a complete no go as well with this adjudicator. I was constantly reminded that if the vehicle was in the bus lane then a contravention occurred and that's all that needed to be decided regardless of intrusion distance. Likewise length of time before restriction end irrelevant.
The missing grounds identified by Phantom Crusader did hold some weight but not enough to amount to PI.
Thanks for all the guidance. Never attended the tribunal before so had some value as a learning process. At least the council had to actually work for their money.
Full decision below.
(https://i.imgur.com/y1VPKmG.png)
(https://i.imgur.com/w7XP9RR.png)
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Would it be possible to have a copy of the full FOI letter for the camera make/model you received from the council please?
@LoneStartState I have emailed it to you.
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Update: Hearing is 7th August
@cp8759
Would it be possible to have a copy of the full FOI letter for the camera make/model you received from the council please?
Feel free to redact personal info etc.
Thanks
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The PCN says the penalty must be paid “no later than” when the new regs now say “must be paid within the period of 28 days beginning with the date on which the penalty charge notice is served.” The same applies to the time for making representations. These raise an old legal point based on the word “within”. It’s missing this ground of appeal: (i)the vehicle in question was at the material time hired from that firm under a hiring agreement. Also missing this ground: (g)the order which is alleged to have been contravened in relation to the vehicle concerned, except where it is an order to which Part 6 of Schedule 9 to the RTRA 1984 applies, is invalid. Also: (i)the enforcement notice should not have been served because—
(i)the penalty charge has already been paid in full, or
(ii)the penalty charge has been paid, reduced by the amount of any discount set in accordance with Schedule 9 to the TMA 2004, by the applicable date as specified in paragraph 1(3) of Schedule 3 to the 2022 General Regulations.
The Notice of Rejection below “Dear” wrongly states the The Transport Act 2000 when it is now the TMA 2004 that is relevant and it fails to give you a proper deadline for when a Charge Certificate may be served and to indicate the nature of an adjudicator’s power to award costs.
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Just to clarify
I registered an appeal relying on prior formal representations. Council then uploaded evidence pack a few days later last Friday but I was away until Monday and couldn't deal with it until yesterday.
I now need to select hearing type and give a date but wasn't sure if I would be able to submit further evidence after this.
Think I should be ok to just submit hearing preference and submit a skelly soon after within a reasonable timeframe which I shall do.
Thanks
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The TPT website gave me the impression that once a hearing type and date was selected, no more evidence/documents such as a skeleton argument etc would be able to be added
I thought this sounded a bit odd so I had a rummage on the TPT site and found
https://www.trafficpenaltytribunal.gov.uk/want-to-appeal/
If you click on the hyperlink 'Evidence' you get a long pop-up which includes this sentence:
Don’t worry if you do not have all evidence you would like to provide to hand when submitting your appeal. It can be added later as your case progresses.
Which leaves me wondering as to how come you've got an evidence pack if you've not yet registered an appeal?
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Hi John
I haven't selected a date yet. If I choose one sufficiently far into the future can I still upload evidence/documents after making the hearing selection? The TPT website gave me the impression that once a hearing type and date was selected, no more evidence/documents such as a skeleton argument etc would be able to be added and the hearing selection needs to be made before this Friday the 12th.
I'll post appeal summary this evening although when looking through their evidence I don't think I saw a summary by them, just the PCNs, NORs, TRO, VCA certificate etc. Will double check.
Thanks
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Date for the appeal hearing?
Please post up the Council's summary of why they believe the appeal should be rejected.
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Council evidence was received Friday. Unfortunately I was away camping from Friday to Monday and have been looking at the evidence today.
They submitted a more up to date TRO that includes the correct prohibition times. The VCA approval they submitted is for the BLADM055 TES Digital Systems (TEMDIGI) fixed cameras that was shown in the DFT URL linked in post number 6.
I'm drafting a skeleton argument asap but obviously there isn't a great deal of time as I'm again away on Thursday evening. I'll try and get something for review asap.
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OK Brill
Appeal submitted relying on formal reps with me listed as the appellant's representative.
Will update in due course.
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There's also a disparity between the restrictions on the signage and the Bus Lane Order for the Sussex Place bus lane. The order states the prohibition is at all times (as opposed to 7-10am and 3-7pm on signage) and also states the bus lane extends 68m east of Dolphin Road. Google Maps has that bus lane at only 43m length.
Honestly this is the only thing you mention that is properly arguable, all the other points are irrelevant.
The argument to be made is that the signs do not convey the effect of the order, and that is a breach of regulation 18 of The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996 (https://www.legislation.gov.uk/uksi/1996/2489/contents).
There are a few examples here (https://docs.google.com/spreadsheets/d/1pVrE76_RYY6bNmEpYGbsZkxtpfIeud_BT3SKfg7TzQM/edit?gid=642784037#gid=642784037&range=A1) where LATOR is mentioned, just search column A and you'll find a few.
Binding authority for the proposition that the adjudicator can allow an appeal based on a failure by the council to comply with LATOR is found in Nottingham City Council, R (on the application of) v Bus Lane Adjudicator & Ors [2017] EWHC 430 (Admin) (https://www.bailii.org/ew/cases/EWHC/Admin/2017/430.html).
Lastly for non-London cases it's always worth checking that the copy of the PCN that the council submits to the tribunal is a 100% perfect copy of the one served on the Appellant, as non-London councils have quite a high propensity for getting this wrong. If you notice any discrepancies, that's a procedural impropriety and the best case we have on this point is Vanessa Price v Nottingham City Council (NG00044-2201, 7 March 2022) (https://drive.google.com/file/d/1YAg82YBKfVyHTSQmdOI229Yt5QccDKFt/view).
I'd recommend that once you've received the council evidence you draft a skeleton argument and put it on here for review. When registering the appeal just put "I rely on my formal representations" and leave it at that, there's no point in showing your hand first. Obviously make sure to request a video hearing and not a decision on the papers, you will be asked this question after the council has uploaded its evidence.
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Thanks for the offer CP in your PM.
In this instance I'd like to represent my partner and will get her to authorise me as her representative. I've already told her if we don't win at tribunal, I'll cover the extra £35. I'm treating this as a learning curve for the process.
I'm planning to draft something this weekend. It will mainly be the contravention did not occur/lack of camera approval point.
I'll look through similar threads on here in the meantime and post the draft on here for critique.
Does their poor NOR response have any grounds in itself? Their claim a human observed the contravention live is a flat out lie given the camera system is automated as stated by the manufacturer.
They claim the vehicle was in the bus lane for "over 30m" which is untrue if Google Maps measurements are reliable. The top of the BUS LANE text to the bus lane end is 33m in itself. The start of the video the vehicle is past that point already and does not enter until notably later. It's just again dishonest on Slough's part. Maybe I'm focussing too much on that.
There's also a disparity between the restrictions on the signage and the Bus Lane Order for the Sussex Place bus lane. The order states the prohibition is at all times (as opposed to 7-10am and 3-7pm on signage) and also states the bus lane extends 68m east of Dolphin Road. Google Maps has that bus lane at only 43m length.
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Well it's really now just a question of whether you want to put the council to proof on the question of the camera (which is not really something that should be stated in representations, you can only put someone to proof in contested legal judicial and before filing a notice of appeal, there are no judicial proceedings).
Anyway, I'll drop you a PM in case you'd like to pursue this.
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Apologies
See below the 4 pages of the NOR. The reps I submitted are in reply 13 of this thread.
(https://i.imgur.com/ZXNEOyJ.png)
(https://i.imgur.com/T3KnYgF.png)
(https://i.imgur.com/W0NehYT.png)
(https://i.imgur.com/wK17M5A.png)
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@LoneStartState as John says, read the guidance (https://www.ftla.uk/civil-penalty-charge-notices-(councils-tfl-and-so-on)/read-this-first-before-posting-your-case!-this-section-is-for-council-tfl-dartme/) to post the notice of rejection.
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I can't seem to attach NOR currently due to an "upload folder full, speak to adminisatrator" message on posting but will try again tomorrow.
Attachment space here is very limited. Have a read of
https://www.ftla.uk/civil-penalty-charge-notices-(councils-tfl-and-so-on)/read-this-first-before-posting-your-case!-this-section-is-for-council-tfl-dartme/
use an external site and post the BBCodes here.
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No need to call in the end.
I've been away but NOR received 13 June with discount having been reset. I can't seem to attach NOR currently due to an "upload folder full, speak to adminisatrator" message on posting but will try again tomorrow.
Just for reference and clarification, two sets of reps were submitted after it was believed an incorrect email address was submitted by accident with the first rep submission. First rep submission on the 29 April was:
"Dear Slough Borough Council
I wish to make representations against PCN SB41647918 on the following grounds:
Plea for discretion
Alleged contravention is de minimis
I was returning from a day trip to Windsor and staying with family nearby in Langley. Whilst travelling down the A4 and seeing the bus lane ending, I began to merge left into the unoccupied lane I saw in the distance. Merging left prematurely, my vehicle entered the Sussex place bus lane for approximately 2 seconds and 15-20m prior to its end. This was the final bus lane in a series of bus lanes spanning an approximate 250m stretch of the A4. No unfair advantage was gained by me over other road users through this premature action. The detection time on the PCN shows there was less than 4 minutes (or roughly 1.6%) of the restriction period remaining.
I would ask that you consult with statutory guidance and consider cancelling the PCN in the first instance exercising your discretionary powers based on the points raised above.
In the alternative, I would request the council to cancel the PCN on the basis of the alleged contravention being too trivial to enforce, or de minimis. This is in light of the time left prior to restriction end, the distance and time the vehicle was in the bus lane, and the lack of any advantage gained over other road users.
Thank you in advance"
On realisation of the email error, follow up reps were submitted with the correct email which merely added the following camera approval section:
"Lack of camera approval
The camera SBC used to capture the alleged contravention is not an approved device. The council is put to strict proof that they have appropriate approved device certification for the camera in question (Make: TES Small Blue Enforcement CCTV Cameras, Model: Blue Gen2) that monitors the Sussex Place bus lane. The camera certificates available at the following link do not mention any camera remotely similar to the make and model of the one above:
https://assets.dft.gov.uk/publications/tma-part-6-list-of-approved-devices/approved-device-certifications-slough.zip"
The date on page 1 of the NOR is 13th June but on page 3 where information about appealing to the TPT the NOR date is given as the 1st May. Will check the tribunal website ASAP to see if an appeal can still be made.
NOR seems a bit pants. "Trust us" re camera approval, no specific addressing of the de minimis point. Welcome any further input.
Weirdly they've claimed that the contravention was identified by an operator in real time which isn't the case. The TES Small Blue is an automated setup with backoffice staff then subsequently assessing videos to issue the PCN.
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@LoneStartState have you tried phoning the council?
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Update:
SBC were contacted through their contact the parking team form on their website last week. They responded the next day in a way that suggested they didn't read the email and essentially stated "this is not an email address to challenge PCNs, you must follow the statutory process, do not send emails about PCNs to this address". I merely asked for an NOR if issued or the appeal verification code and that the email address may have been mistyped.
Anyways I went back on to the PCN portal for Slough. The outstanding amount is still £70. I clicked appeal and to my surprise found I could submit representations still. So I resubmitted making explicit mention of the email address error and including the correct email address with these representations (screenshots captured) An acknowledgement email was received for the submission this time round which confirms my suspicions about the email mistype.
I did also ask for the NOR if issued and an appeal verification code for the tribunal within the rep submission. Also added the camera approval point which was not in the first submission.
Hopefully this doesn't lead to a snowball of confusion for the council.
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If I've accidentally submitted an incorrect email address and an NOR was sent to that incorrect email address, the PCN can still be appealed to the adjudicators with the original PCN ref and VRM?
If the NoR has been issued, you can ask the council for the appeal verification code. If they won't provide it, I have a manual workaround.
But most councils will provide a further copy of the NoR on request. They have 56 days to serve it, so odds are it's not been issued yet.
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Hello again
I submitted reps on behalf of my girlfriend for this PCN. The submission stated an acknowledgement email would be sent that she didn't receive. There's a possibility I might have accidentally entered an incorrect email address when submitting the reps.
I've been tracking the ticket on the portal. Early last week it was still at £35. I've checked today and it's now back to the full amount of £70. Just getting her to double check her email inbox/spam folders for any possible NOR.
If I've accidentally submitted an incorrect email address and an NOR was sent to that incorrect email address, the PCN can still be appealed to the adjudicators with the original PCN ref and VRM?
I will get her to contact SBC as a matter of urgency to make a data rectification notice and get the NOR in the meantime anyways.
Thanks in advance
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Thanks for this info.
I guess this allows a safe assumption those cameras are not approved devices.
No response to reps from council as of yet.
So it would seem.
Regulation 4 on what is an approved device : -
https://www.legislation.gov.uk/uksi/2022/71/regulation/4/made
Then one looks at Schedule 1 : -
https://www.legislation.gov.uk/uksi/2022/71/schedule/1/made
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Thanks for this info.
I guess this allows a safe assumption those cameras are not approved devices.
No response to reps from council as of yet.
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FOI response from the council:
(https://i.imgur.com/jWKh1g6.png)
The camera certificates at https://assets.dft.gov.uk/publications/tma-part-6-list-of-approved-devices/approved-device-certifications-slough.zip don't tie back to that make and model.
The Borough of Slough (Various Roads) Bus Lane Order 2020 (https://drive.google.com/file/d/14Od8Z_u8xvlpaAHIEfDcbvnOPt-JSiJe/view).
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Reps submitted today with screenshot captured.
Unfortunately neither myself or girlfriend are that local but may be able to check in the interim period as her family are around there. From memory she believes the bus lane sign was there for that stretch.
Will let you know of any decision outcome in due course.
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Yes that's spot on for present purposes.
Are you able to go back and check the condition of the signs?
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Thanks both for your feedback. See below draft representations. Any feedback welcome. Will plan to submit tomorrow.
"Dear Slough Borough Council
I wish to make representations against PCN SB41647918 on the following grounds:
Plea for discretion
Alleged contravention is de minimis
I was returning from a day trip to Windsor and staying with family nearby in Langley. Whilst travelling down the A4 and seeing the bus lane ending, I began to merge left into the unoccupied lane I saw in the distance. Merging left prematurely, my vehicle entered the Sussex place bus lane for approximately 2 seconds and 15-20m prior to its end. This was the final bus lane in a series of bus lanes spanning an approximate 250m stretch of the A4. No unfair advantage was gained by me over other road users through this premature action. The detection time on the PCN shows there was less than 4 minutes (or roughly 1.6%) of the restriction period remaining.
I would ask that you consult with statutory guidance and consider cancelling the PCN in the first instance exercising your discretionary powers based on the points raised above.
In the alternative, I would request the council to cancel the PCN on the basis of the alleged contravention being too trivial to enforce, or de minimis. This is in light of the time left prior to restriction end, the distance and time the vehicle was in the bus lane, and the lack of any advantage gained over other road users.
Thank you in advance"
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Well the starting point is that we need the traffic order, so I have requested that. I have also asked for the make and model of the CCTV camera, so that we can check whether it is properly approved.
In order to buy as as much time as possible to get the information back, I'd recommend making a representation on 28 April as doing so should get the discount extended for several weeks. A basic please for discretion / de minimis will do for the purposes of just buying us some time, but still put a draft on here in the first instance.
It would also be worth double checking that the signs visible on google street view are actually still there, you never know what might turn up.
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Well, of course it is the usual money-grubbing PCN we see so often on here, but with her being 4 minutes before the end time, she might struggle with de minimis, I'm afraid. The problem with this argument, is it's subjective, there is no definition of de minimis. It it was a minute or less, you can argue that a car clock can never be accurate to the exact second and there are successful appeals that support this.
Of course you can try it, but you'd be on stronger ground if we can find a procedural impropriety somewhere, but at the moment, I don't see one, the PCN looks OK to me. The video shows her driving boldly into the start of the bus lane and presumably all the way to the end of it, true ?
So wait a bit and see what the others say. If it were me I'd submit reps on a de minimis basis to see what they come back with. As this is a postal PCN under the TMA 2004, they have 56 days to reply.
Other thing to mention is that the council may have published guidance on enforcement that covers this, but you'd have to search around for it. If that acknowledged de minimis, and gave the limit they work to, then you'd be in a stronger position, I think.
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Hi there again
My girlfriend has been sent a PCN for being in a bus lane in Slough. See attached for redacted PCN.
Video is here
https://youtu.be/Ev1QTJBuLnA
Time of alleged contravention is just under 4 minutes prior to restriction end and as can be seen, not a huge deal of intrusion prior to the lane ending anyways (~15 metres, maybe less based on measure distance on Google Maps).
GSV location: https://maps.app.goo.gl/iG7k3gziDoZpNuBR7
Hoping as an initial start that de minimis/plea for discretion can apply for this.
Let me know if you guys spot anything else
LSS
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