Free Traffic Legal Advice
Live cases legal advice => Civil penalty charge notices (Councils, TFL and so on) => Topic started by: Staygulf on June 15, 2023, 09:49:47 pm
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If somebody would acknowledge that I am a Senior Citizen and increase the number of stars (10) as per those which I have earned on the other forum, I will entertain them at their next BBQ party free of charge.
I'm afraid that's beyond even my powers, but well done for the outcome (https://drive.google.com/uc?id=1aXzA3M8jCbefIkv2Jfkbpbr6KYUV9vH5)!
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Mr Teper is and always has been against the conflation argument. Mr Mustard had attempted Section 36 arguments re a Kingston case with Mr Houghton. The case(s) were won on signage; but, another adjudicator would have found differently. As we all know.
I note I am a Jr. Member with 2 stars. Good Heavens! ;D
Congratulations!
If somebody would acknowledge that I am a Senior Citizen and increase the number of stars (10) as per those which I have earned on the other forum, I will entertain them at their next BBQ party free of charge.
More seriously, there is a difference between incompetence and wholly unreasonable conduct. In my view, the NOR meets the latter criterion. But, see what Mike says.
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Mr Teper is and always has been against the conflation argument. Mr Mustard had attempted Section 36 arguments re a Kingston case with Mr Houghton. The case(s) were won on signage; but, another adjudicator would have found differently. As we all know.
I note I am a Jr. Member with 2 stars. Good Heavens! ;D
Congratulations!
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Mr Teper is and always has been against the conflation argument. Mr Mustard had attempted Section 36 arguments re a Kingston case with Mr Houghton. The case(s) were won on signage; but, another adjudicator would have found differently. As we all know.
I note I am a Jr. Member with 2 stars. Good Heavens! ;D
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Many congratulations. ;D Don't they have a camera to take contemporary pictures of the signs? ::)
Costs? Comments re TMO and sufficient evidence in the NOR. Unfortunately, the conflation argument appears be otiose now! But, your representative did a superb job.
Thanks. He did well. I imagined that when we uploaded the camera evidence being out of date they would send someone along and upload new photos!
Amongst about 6 heads of argument I believe he mentioned that the s36/TMO argument has been knocking around for some years, but as far as the 28 day conflation point he seemed to be leaning towards saying that there was nothing wrong with the wording.
However, as he found in our favour on the photo evidence he didn't really have to consider either point.
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Many congratulations. ;D Don't they have a camera to take contemporary pictures of the signs? ::)
Costs? Comments re TMO and sufficient evidence in the NOR. Unfortunately, the conflation argument appears be otiose now! But, your representative did a superb job.
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I suggest that if you want to carry on, you simply register the appeal with "I rely on my formal representations" and wait for the evidence pack, as new and more solid grounds might emerge when you go through it.
However I have to be honest, I think you have less than a 50% chance of success. On the other hand as the discount is gone, there's no point in paying now and you might as well have a go.
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Draft appeal wording
Anything to add?
Case Reference Number ??????
I wish to appeal this contravention as follows:-
Issues at Hand
1. That the Contravention given is untenable.
The London Local Authorities and Transport for London Act 2003 prohibits a contravention which is based on the TMO at the same time as the restriction has a Sect 36 sign (diagram 953).
Section 4 of the 2003 Act provides, so far as is material to this case:-
(5) Subject to subsection (6) below, for the purposes of this section, a penalty charge is payable with respect to a motor vehicle by the owner of the vehicle if the person driving or propelling the vehicle
(a) acts in contravention of a prescribed order; or
(b) fails to comply with an indication given by a scheduled section 36 traffic sign.
(6) No penalty charge shall be payable under subsection (5)(a) above where
(a) the person acting in contravention of the prescribed order also fails to comply with an indication given by a scheduled section 36 traffic sign.”
What is clear from these provisions is that where the contravention consists of failing to comply with the indication given by a Section 36 traffic sign, the Authority is proscribed from demanding payment of a penalty charge for an alleged contravention of the TMO. They may only demand payment on the grounds that the motorist had failed to comply with the sign.
Case 2170058483 and the Review of that Decision are germane to my case.
In the key case in the Tribunal’s library 2180362323 the Adjudicator stated:-
“If the Enforcement Authority was demanding payment of the penalty charge for the breach of the Order then it is indeed difficult to see how it could lawfully do so in view of the plain wording of Section 4(6).”
In my case the Council's Notice of Rejection states " We have a valid Traffic Management Order (TMO) to enforce the restriction at this location"
With respect, the Council does not have an unfettered choice of contravention (which the legislation prohibits) and there can only be a contravention based on the signage. Since this relates to a bus gate and a Diagram 953 sign, I contend that the contravention Code is therefore incorrect and the PCN thereby invalid especially since the Council relies on its TMO.
2. That the PCN is a Nullity due to a Conflation of Dates
The wording on the Penalty Charge Notice produced does not comply with the legal requirements since there is a clear, and incorrect, confluence/conflation of the two provisions regarding payment and making representations.
The 'date of service' provision contained in paragraph 1(3) of Schedule 1 to the London Local Authorities Act 2003 does not apply to the 14-day and 28-day payment periods specified by section 4(8)(iii) and (iv) of the LLAA 2003, as it only applies to the local authority having a discretion to disregard representations received by them after the end of the period of 28 days beginning with the date on which the Penalty Charge Notice in question was served (as is clear from a reading of paragraph 1(3) of Schedule 1 to the 2003 Act). By stating "If you fail to pay the Penalty Charge Notice or make representations before the end of the period of 28 days beginning with the date of service of this notice, a charge certificate may be issued to you increasing the penalty charge payable to £195" the Penalty Charge Notice conflates the "28 day period" for payment which begins with the date of the notice in section 4(8)(iii) with the "28 days" for the making of representations which in fact only begin with the date of service of the notice in paragraph 1(3) of the 2003 Act.
Decisions where this ground has been accepted are:- 2220655455; 211055831A; 2110335439; 2130014846; 2110436163; 211032734A; 211070709A; 2110504128; 2110501141; 2110428700; 2100028598; 2130161614; 2110479009; 2110285432; 2110285432; 2100549287; 212049029A;
3 Failure to Consider (a Procedural Impropriety)
I would argue that there has been a total failure to consider my substantive grounds in the Authority’s Notice of Rejection dated 7th July 2023. The mere assertion that a contravention has been committed and the PCN wording, lines and signs are correct is insufficient. Likewise the compelling reasons I submitted concerning the learner driver.
I am entitled to have the points I raised properly considered by the Enforcement Authority pursuant to its duty under regulation 6(4)(a) of The Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022. On this occasion the Authority has failed to do this.
To support this contention I reference case 2210280742 (Sumayyah Burton v London Borough of Waltham Forest).
Based on the foregoing arguments, it is respectfully submitted that the Council has failed to present a sustainable case for enforcement of the PCN.
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Thank you. An appeal is being submitted, kindly drafted by MMV Redux.
Can you post the wording on here please?
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With regard to the video, I'm aware that it is not showing on the website but I'm surprised that they would release it to anyone other than the data subject. Is that not against GDPR or is it publicly accessible?
All you need is the PCN number and number plate to get the video on https://viewmypcn.co.uk/default.aspx
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Thank you. An appeal is being submitted, kindly drafted by MMV Redux.
With regard to the video, I'm aware that it is not showing on the website but I'm surprised that they would release it to anyone other than the data subject. Is that not against GDPR or is it publicly accessible?
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I have requested the video footage, but given that the discount has expired it would make no sense to pay now.
You might as well file an appeal with "I rely on my formal representations" and wait and see the evidence pack, you never know they might mess it up. File the appeal online at https://londontribunals.org.uk/ and request a hearing (in the box where you are asked to explain why you are appealing, you can add a note asking for a telephone hearing), and make sure to set the comms preference to email rather than post.
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MDA17
HR93106428
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Please give us the PCN number and number plate so that we can see the video. I think there's at least one failure to consider in the Notice of Rejection, possibly two.
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As expected, I have received a notice of rejection of my representations.
https://1drv.ms/i/s!AgBjZaEfjV0Rsj8P3GYOn4sAo3uy?e=DoAmgx
https://1drv.ms/i/s!AgBjZaEfjV0RskBVPJ8NymWl8FQW?e=grYZzh
https://1drv.ms/i/s!AgBjZaEfjV0RskFjIhXCbM7LKL2_?e=cDa9Cb
https://1drv.ms/i/s!AgBjZaEfjV0RskK0DItRnpwK5SVa?e=L8KlCV
https://1drv.ms/i/s!AgBjZaEfjV0RskPNRFKu9s3EHWDg?e=uAXa6Q
https://1drv.ms/i/s!AgBjZaEfjV0RskQzOroTOhO9QcF-?e=JN7eBA
They seem to have confirmed they are taking action under the TMO rather than the s36 signage.
They do not accept that the wording on the PCN is defective.
Any thoughts? I'm obviously past the discounted stage so have nothing to lose in taking it to appeal.
Anyone care to draft something or should I just cobble together some of the old case references on Pepipoo?
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I have sent a PM with details of the key cases.
Sect 36 v TMO =
2180362323 2170058483
Conflation=
2220655455; 211055831A; 2110335439; 2130014846; 2110436163; 211032734A; 211070709A; 2110504128; 2110501141; 2110428700; 2100028598; 2130161614; 2110479009; 2110285432; 2110285432; 2100549287; 212049029A
Mike
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https://1drv.ms/i/s!AgBjZaEfjV0RsgOjZ9l_S8ipLQVB?e=yHBvm2
https://1drv.ms/i/s!AgBjZaEfjV0RsgTL1QWwOlNgasng?e=ffuKxD
https://1drv.ms/i/s!AgBjZaEfjV0RsgIfeLPj_0tbAO7I?e=8Rchea
https://1drv.ms/i/s!AgBjZaEfjV0RsgF96P-O4oaP-hNZ?e=ipdbXu
I had a live thread going regarding my violation of the Camrose Avenue bus gate.
I was hoping to use the TMO v s36 sign argument but MMV Redux suggested that it is not a flyer these days.
I think the view was also that the conflation argument is also a non starter theses days.
I seem to remember that the last thing that Schofeld posted was something about the TWOC ground but I had no idea what this meant and was awaiting an answer when everything went blank.
If I put the following repesentations in I suppose I am then at a loss as to how to appeal without all the back up tribunal decisions.
"I’ve never been to Harrow so the area was unfamiliar to me. I was travelling behind a learner who indicated that he was turning right. I assumed that he was turning into St Bride’s Ave and as he pulled over I continued on his inside. I was surprised as he didn’t turn but continued moving forward aside me, which disconcerted me, and I suddenly found myself at a stop road marking. I had seen an earlier width restriction sign and assumed this was part of the width restriction. I would add that in my part of London all the width restrictions I have seen buses are directed to the centre of the restriction, which is wider, and cars are directed to the left. It was not unusual for me to position my car as I did.
I saw no signs indicating a “bus gate”.
However I have since looked at Google streetview which shows blue bus lane signs on a backboard. The image was taken in 2008 I believe and can only assume that the round sign, the back of which is visible in your photographs, is a similar blue bus lane sign. These signs seem to be immediately in front of the stop road markings and give no clear warning of a “bus gate”. I would therefore contend that the correct contravention is code 34 Being in a bus lane and not code 33E Using a route restricted to certain vehicles buses, cycles and taxis only.
I have also noticed a wording on the PCN which 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.
This appears to suggest that I have until 28 days after the service of the notice to pay the Penalty (whereas it should be 28 days from the date of the notice) and also to threaten that if I make representations within the period that I’m supposed to make them I may be subject to an increased penalty. This does not appear to be consistent with the legislation and, I believe, renders the PCN a nullity.
I would therefore request that you cancel the PCN for the following reasons:
1 The contravention did not occur as it is misstated.
2 The PCN is a nullity and should be cancelled because of its defective wording
2 As I cannot see from your evidence what restriction signs I passed, the PCN is a nullity.
3 On a discretionary basis as the circumstances with the learner driver and the normal placing of width restrictions in my area caused confusion.
I have a few more days to submit my representations.
Or should I just swallow my pride and pay up?