Free Traffic Legal Advice
Live cases legal advice => Civil penalty charge notices (Councils, TFL and so on) => Topic started by: Nayur79 on August 12, 2023, 05:46:03 pm
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A note to anyone who gets a PCN on Headstone Lane: the TMO is nonsense, so I can't see how Harrow can enforce it.
The Harrow (Bus Priority) Traffic Order 2016 (https://www.whatdotheyknow.com/request/harrow_width_restriction_tmos/response/2867517/attach/2/8814463%202016%2039%20AMND.pdf?cookie_passthrough=1) defines the restricted section of road as:
the carriageway which lies between the island site situated between a point 6.00 metres north-east of the extended north-eastern kerb-line of Melbourne Avenue and a point 9.00 metres north-east of that point.
Let's define
AA = "a point 6.00 metres north-east of the extended north-eastern kerb-line of Melbourne Avenue"
BB = "a point 9.00 metres north-east of that point"
Then the TMO is specifying:
the carriageway which lies between the island site situated between AA and BB.
Some questions:
- What is "the island site"?
- The definition of BB by reference to the point AA makes sense, but how is the point AA defined by reference to "the extended north-eastern kerb-line of Melbourne Avenue"? That's a line, not a point.
Let's suppose that we manage to resolve those questions. We define:
CC = "the island site situated between AA and BB"
Now the TMO's specification of the restricted section of road is:
the carriageway which lies between CC.
I defy anyone to explain how this is a legally-robust definition of anything, let alone a section of road from which Harrow Council makes £500,000 a year.
If there isn't a valid TMO (or rather, that part of the TMO for Headstone Lane is invalid), Harrow can't just brush this off. Southwark Council has just been forced to refund a load of PCNs (https://southwarknews.co.uk/area/rotherhithe/exclusive-council-to-refund-over-100k-to-drivers-wrongly-fined-at-lower-road-bus-lane/) because they had an experimental TMO which expired and they didn't put a new one in place but continued to issue PCNs when there wasn't a TMO.
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Thanks. The width restriction is VERY close to the left turn. There's also no advance warning of it when you're driving along Melbourne Avenue, so it's a complete surprise when you reach the junction, look left and think "What the hell is that? How do I get through?".
I've been looking into this scheme and the one on Camrose Avenue. They both date from 1976 and both were designed to have electronically-controlled rising barriers (red-and-white-striped poles) on the bus lane(s), which made them self-policing. Each has a junction immediately before the restriction which makes turning left into the width restriction very difficult. I understand that locals tend to pull out as if to turn right from the side road and then do a sharp left to get a better approach to the width restriction. If you don't know what's about to hit you (and why should you, given there's no
sign?), you face a choice between damaging your car and paying Harrow's fee.
Harrow's motto is "Putting residents first". They do that by levying a tax on non-residents, who lack the knowledge to negotiate the traps which they have laid in their road system.
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A question, if I may, to the OP: why did your wife go through the bus gate? Was it that she saw the width restriction but it was so close to the junction that she wasn't confident that she could get through it without scraping the car?
There is another type of restriction - height restriction through an arched bridge - where highway authorities use special markings on the road to assist high vehicles to approach the restriction straight-on. This is set out in section 11.3 of Chapter 5 of the Traffic Signs Manual (https://assets.publishing.service.gov.uk/media/5c4ace6ded915d38a0611abc/traffic-signs-manual-chapter-05.pdf). There is meant to be 20m of parallel marks on the road perpendicular to the face of the arched bridge, but they acknowledge that it isn't always possible to provide this distance. Rigid (i.e. non-articulated) HGVs are up to 12m long, so the comparable length of perpendicular lines for a 5m car to get through a width restriction would be 8m.
Unfortunately, the Department for Transport doesn't seem to have recognised that Harrow (I don't know if any others do) put width restrictions immediately after a junction and collect fees from motorists who don't want to risk their vehicles. This doesn't seem to be an acceptable reason for an Adjudicator to allow an appeal, but the absence of advance notice on the approach to the junction might be (this has worked for some people turning left from Dale Avenue to Camrose Avenue).
Yeah I think it was what you said, she didn't feel she could get through the width restriction and with traffic behind here went via the bus gate. I think she had just turned into the road.
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A question, if I may, to the OP: why did your wife go through the bus gate? Was it that she saw the width restriction but it was so close to the junction that she wasn't confident that she could get through it without scraping the car?
There is another type of restriction - height restriction through an arched bridge - where highway authorities use special markings on the road to assist high vehicles to approach the restriction straight-on. This is set out in section 11.3 of Chapter 5 of the Traffic Signs Manual (https://assets.publishing.service.gov.uk/media/5c4ace6ded915d38a0611abc/traffic-signs-manual-chapter-05.pdf). There is meant to be 20m of parallel marks on the road perpendicular to the face of the arched bridge, but they acknowledge that it isn't always possible to provide this distance. Rigid (i.e. non-articulated) HGVs are up to 12m long, so the comparable length of perpendicular lines for a 5m car to get through a width restriction would be 8m.
Unfortunately, the Department for Transport doesn't seem to have recognised that Harrow (I don't know if any others do) put width restrictions immediately after a junction and collect fees from motorists who don't want to risk their vehicles. This doesn't seem to be an acceptable reason for an Adjudicator to allow an appeal, but the absence of advance notice on the approach to the junction might be (this has worked for some people turning left from Dale Avenue to Camrose Avenue).
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Actually, the council messed up their evidence recently at the Tribunal since they presented undated photos. The case was won.
ETA Register of Appeals
Register Kept Under Regulation 20 of the Road Traffic (Parking Adjudicators)(London) Regulations 1993, as amended or Paragraph 21 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, as applicable
Case Details
Case reference 2230339702
Appellant Mark Abrahams
Authority London Borough of Harrow
VRM MDA17
PCN Details
PCN HR93106428
Contravention date 14 May 2023
Contravention time 15:46:00
Contravention location Camrose Avenue
Penalty amount N/A
Contravention Using a route restricted to certain vehicles
Referral date
Decision Date 16 Aug 2023
Adjudicator Carl Teper
Appeal decision Appeal allowed
Direction cancel the Penalty Charge Notice.
Reasons The Appellant attended by telephone as did his representative Mr M Cairns.
The Authority's case is that the Appellant's vehicle used a route restricted to certain vehicles (local buses and cycles only) when in Camrose Avenue on 14 May 2023 at 15.46.
The Appellant denies the contravention and through his representative has advanced a number of points.
I have considered the evidence and I find that this PCN cannot be upheld for the following reason:
First, I am not satisfied that the Authority has proved the signage at this location.
Second, the library photographs produced in the Map/Site evidence at 'J' in the evidence tree are undated, and they do not show any sign plate(s) in between the bus gate and the vehicular route.
Third, in the CCTV footage the back of two circular sign plates can be seen between the two routes. There is no evidence in relation to what these signs are.
Further, the photographs on the Notice of Rejection do not show the signage of which only the back can be seen in the CCTV footage.
In light of this finding I am not required to resolve any other issues between the parties.
The appeal is allowed.
Authority Response
Feel gutted as this was the main basis of the appeal I would have made, barring the date issue on the evidence! I knew the photos didn't show the signs and thought the emphasis would be on the council to ensure that photos showed the signage.
Ah well, win some and lose some. Thank you for educating me, hopefully don't need to use this again!
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Actually, the council messed up their evidence recently at the Tribunal since they presented undated photos. The case was won.
ETA Register of Appeals
Register Kept Under Regulation 20 of the Road Traffic (Parking Adjudicators)(London) Regulations 1993, as amended or Paragraph 21 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, as applicable
Case Details
Case reference 2230339702
Appellant Mark Abrahams
Authority London Borough of Harrow
VRM MDA17
PCN Details
PCN HR93106428
Contravention date 14 May 2023
Contravention time 15:46:00
Contravention location Camrose Avenue
Penalty amount N/A
Contravention Using a route restricted to certain vehicles
Referral date
Decision Date 16 Aug 2023
Adjudicator Carl Teper
Appeal decision Appeal allowed
Direction cancel the Penalty Charge Notice.
Reasons The Appellant attended by telephone as did his representative Mr M Cairns.
The Authority's case is that the Appellant's vehicle used a route restricted to certain vehicles (local buses and cycles only) when in Camrose Avenue on 14 May 2023 at 15.46.
The Appellant denies the contravention and through his representative has advanced a number of points.
I have considered the evidence and I find that this PCN cannot be upheld for the following reason:
First, I am not satisfied that the Authority has proved the signage at this location.
Second, the library photographs produced in the Map/Site evidence at 'J' in the evidence tree are undated, and they do not show any sign plate(s) in between the bus gate and the vehicular route.
Third, in the CCTV footage the back of two circular sign plates can be seen between the two routes. There is no evidence in relation to what these signs are.
Further, the photographs on the Notice of Rejection do not show the signage of which only the back can be seen in the CCTV footage.
In light of this finding I am not required to resolve any other issues between the parties.
The appeal is allowed.
Authority Response
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Sorry, are you suggesting that the council doesn't consider mitigation even though this is required by law? Why do they do that, as they would lose on this basis if it went to the adjudicator surely?
Please read page 22 of this document (https://drive.google.com/uc?id=14qWRhA5nPdlyaL5lcZJcgG9Y_K5X9sCJ). As for why, councils do all sorts of stupid things, we don't worry about why they do stupid things, we're busy enough as it is.
Can I just clarify what mitigation I would be proposing? I didn't think the evidence not showing the signs would be seen as mitigation?
If you've paid the PCN it's too late anyway, so this is all academic.
No I have paid the PCN and realise its academic but just wanted to understand what you mean by mitigation to better understand this.
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Sorry, are you suggesting that the council doesn't consider mitigation even though this is required by law? Why do they do that, as they would lose on this basis if it went to the adjudicator surely?
Please read page 22 of this document (https://drive.google.com/uc?id=14qWRhA5nPdlyaL5lcZJcgG9Y_K5X9sCJ). As for why, councils do all sorts of stupid things, we don't worry about why they do stupid things, we're busy enough as it is.
Can I just clarify what mitigation I would be proposing? I didn't think the evidence not showing the signs would be seen as mitigation?
If you've paid the PCN it's too late anyway, so this is all academic.
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Are you suggesting that the appeal is on the basis that you can't see the signs in the direction in which the contravention occurred?
By law the council must consider any representations you put forward, including mitigation. If you made representations based purely on mitigation, and they rejected, you could appeal to the tribunal on the basis that they have unlawfully failed to consider your representations, because their policy document says they won't consider mitigation for this contravention.
Sorry, are you suggesting that the council doesn't consider mitigation even though this is required by law? Why do they do that, as they would lose on this basis if it went to the adjudicator surely?
Can I just clarify what mitigation I would be proposing? I didn't think the evidence not showing the signs would be seen as mitigation?
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Are you suggesting that the appeal is on the basis that you can't see the signs in the direction in which the contravention occurred?
By law the council must consider any representations you put forward, including mitigation. If you made representations based purely on mitigation, and they rejected, you could appeal to the tribunal on the basis that they have unlawfully failed to consider your representations, because their policy document says they won't consider mitigation for this contravention.
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Fair point and deep down I think I knew I'd have to pay. Will just pay the discounted amount.
That's very unfortunate, because there was a viable route to challenge this.
The PCN spreadsheet (https://docs.google.com/spreadsheets/d/1pVrE76_RYY6bNmEpYGbsZkxtpfIeud_BT3SKfg7TzQM/edit#gid=0) tells you that a known flaw of Harrow's PCN process is that mitigation is not considered for some contraventions, and indeed their Mitigation consideration 2017 V1 (https://drive.google.com/uc?id=14qWRhA5nPdlyaL5lcZJcgG9Y_K5X9sCJ) document says for code 33 "No mitigation considered", so getting them for a failure to consider would have been easy.
Can all members please remember not to give advice without checking the spreadsheet first, there are far too many known flaws for anyone to keep all that information in their head, that's why we have a spreadsheet.
Hi thank you for your response. I only paid the fine yesterday as well!
I've had a look at both documents referenced to but can you just explain what you mean by "No mitigation considered"? Would just be good to know this. Are you suggesting that the appeal is on the basis that you can't see the signs in the direction in which the contravention occurred?
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Fair point and deep down I think I knew I'd have to pay. Will just pay the discounted amount.
That's very unfortunate, because there was a viable route to challenge this.
The PCN spreadsheet (https://docs.google.com/spreadsheets/d/1pVrE76_RYY6bNmEpYGbsZkxtpfIeud_BT3SKfg7TzQM/edit#gid=0) tells you that a known flaw of Harrow's PCN process is that mitigation is not considered for some contraventions, and indeed their Mitigation consideration 2017 V1 (https://drive.google.com/uc?id=14qWRhA5nPdlyaL5lcZJcgG9Y_K5X9sCJ) document says for code 33 "No mitigation considered", so getting them for a failure to consider would have been easy.
Can all members please remember not to give advice without checking the spreadsheet first, there are far too many known flaws for anyone to keep all that information in their head, that's why we have a spreadsheet.
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Whilst you can use this argument, (video doesn't show the signs that were passed), they will reject your reps and say the signs are all present and correct. you would have to then take them to London Tribunals with the full PCN penalty in play. The council will then present library photos together with a witness statement that they are present at the location. An adjudicator decides cases using the civil law test of "on the balance of probabilities". To be frank, I cannot see any credible appeal argument, and the discount looks your best option.
Fair point and deep down I think I knew I'd have to pay. Will just pay the discounted amount.
Can I ask how you accessed the video though?
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Whilst you can use this argument, (video doesn't show the signs that were passed), they will reject your reps and say the signs are all present and correct. you would have to then take them to London Tribunals with the full PCN penalty in play. The council will then present library photos together with a witness statement that they are present at the location. An adjudicator decides cases using the civil law test of "on the balance of probabilities". To be frank, I cannot see any credible appeal argument, and the discount looks your best option.
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The video shows the vehicle driving through the bus gate but as per my earlier point, you can not see the signs facing towards the driver, similar to the photos. You can see that signs are in place as you can see the backs of them but you can not see the sign face itself. Long shot but could you argue that the contravention did not occur as there was no signage and let them prove that the signs were in place?
Not sure if they have cameras on the opposite side which would show the signage and I assume if they highlight these then my penalty may well double and I may not have the option to pay the reduced half price of £65.
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The other point to consider is that the contravention occurred on the 27th July, however we did not receive the PCN until the 10th August which is the 14th day after the contravention, although the PCN is dated the 7th August. I thought that you need to receive the PCN within 14 days of the contravention but I may be wrong on this.
Sorry to tell you, but you're wrong. They have 28 days from contravention date.
Ok noted thanks, sorry must have mis read something.
Any thoughts on whether I would stand a chance on a successful appeal and the basis of such?
So far it doesn't look hopeful from your narrative, but whether there is a good appeal argument can only be known when we have seen the video, the sole evidence of the alleged contravention. SO please post it here. One or two people on here can get it for you if you give them the PCN Number and vehicle reg number. Doesn't the PCN tell you how to see it ?
The PCN states that I can see additional images from the Harrow website but nothing about video evidence? Looking at their evidence, this needs to be requested and they will send by post. So have requested this now. I will post the additional images but don't think they help much.
I have the video footage now, how can I attach as file will exceed the allowable limit?
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Hm, looks pretty damning to me ! Why on earth did your wife ignore the correct route and go through the bus gate ? Only thing the video does not show are the signs on the approach. Please post a GSV link that shows them, (assuming GSV is up-to-date).
I've already had the discussion as to why you would go through the bus gate when its marked as such!
Link for streetview as per below, but shows both bus restriction signs in place. Clutching at straws here but as part of the evidence do they not need to show at the time the signs were in place? So a picture from the side that entry was made into the bus gate. I must admit that their picture does show the back of the signs but you can't see the signs themselves?
https://goo.gl/maps/QQp6Ygm432H1YDS19
Also can I ask how did you review the video evidence, I have just requested this?
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Hm, looks pretty damning to me ! Why on earth did your wife ignore the correct route and go through the bus gate ? Only thing the video does not show are the signs on the approach. Please post a GSV link that shows them, (assuming GSV is up-to-date).
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Furtehr to my earlier post, here are the other images from the Harrow website. [attach=1][attach=2][attach=3]
[attachment deleted by admin]
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The other point to consider is that the contravention occurred on the 27th July, however we did not receive the PCN until the 10th August which is the 14th day after the contravention, although the PCN is dated the 7th August. I thought that you need to receive the PCN within 14 days of the contravention but I may be wrong on this.
Sorry to tell you, but you're wrong. They have 28 days from contravention date.
Ok noted thanks, sorry must have mis read something.
Any thoughts on whether I would stand a chance on a successful appeal and the basis of such?
So far it doesn't look hopeful from your narrative, but whether there is a good appeal argument can only be known when we have seen the video, the sole evidence of the alleged contravention. SO please post it here. One or two people on here can get it for you if you give them the PCN Number and vehicle reg number. Doesn't the PCN tell you how to see it ?
The PCN states that I can see additional images from the Harrow website but nothing about video evidence? Looking at their evidence, this needs to be requested and they will send by post. So have requested this now. I will post the additional images but don't think they help much.
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The other point to consider is that the contravention occurred on the 27th July, however we did not receive the PCN until the 10th August which is the 14th day after the contravention, although the PCN is dated the 7th August. I thought that you need to receive the PCN within 14 days of the contravention but I may be wrong on this.
Sorry to tell you, but you're wrong. They have 28 days from contravention date.
Any thoughts on whether I would stand a chance on a successful appeal and the basis of such?
So far it doesn't look hopeful from your narrative, but whether there is a good appeal argument can only be known when we have seen the video, the sole evidence of the alleged contravention. SO please post it here. One or two people on here can get it for you if you give them the PCN Number and vehicle reg number. Doesn't the PCN tell you how to see it ?
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Good morning,
Long shot but wondering if anyone cane help. My wife received a PCN from Harrow Council regarding passing through a bus gate. I have attached a copy of the front of PCN for information.
I have seen that there have been previous posts on this, however from looking at signage it looks like there have been improvements to the signage.
The other point to consider is that the contravention occurred on the 27th July, however we did not receive the PCN until the 10th August which is the 14th day after the contravention, although the PCN is dated the 7th August. I thought that you need to receive the PCN within 14 days of the contravention but I may be wrong on this.
The other point I noticed is that while the sign states the middle bus gate is restricted to the use by buses, cycles and taxis only, the road-markings only state buses?
Any thoughts on whether I would stand a chance on a successful appeal and the basis of such?
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