@Hippocrates: Any views on the chances of success with this?I am sorry as I have just seen this. We have won several cases on this issue which are on the forum.
Merton's web page about school safety zones (https://www.merton.gov.uk/streets-parking-transport/school-safety-zones) states:QuoteRestrictions don't apply during school holidays, inset days, weekends or bank holidays. See each school's website for details of its term dates and inset days.so their policy is clear and in conflict with the TMOs.
I wonder whether Merton were conscious of the risks of having TMOs which applied all year and placed the "School term time" signs to justify not issuing PCNs when the school wasn't in session. The signs might well have sufficed to keep within administrative law. If so, their removal to satisfy adjudicators would be a fine irony: out of the frying pan into the fire.
I wonder whether this is observed?
Schedule 7 to the 2004 Act lists those traffic signs below (prescribed in the Traffic Signs Regulations and General Directions 2016 as amended: ‘TSRGD’) as civilly enforceable as moving traffic contraventions. This applies to any permitted variant under TSRGD; for example, diagram 606 when varied to point ahead or to the right.
It should be noted that the Government committed only to introduce moving traffic enforcement powers in respect of those signs listed below. Regulatory traffic signs (other than those for parking and bus lanes) that are not listed below will remain enforceable only by the police (for example, diagram 626.2A indicating structural weight limits).
[ list of diagram numbers including 618.3C and 953 but not 953A or 953B; the list follows the tables in Regulations 3 and 4 of The Civil Enforcement of Traffic Contraventions (Consequential Amendments) (England) Regulations 2018 (https://www.legislation.gov.uk/uksi/2018/488/contents/made) ]
The Department for Transport’s view, which does not constitute legal advice, is that ongoing bus gate enforcement should not require an application for designation of moving traffic enforcement powers, and that any TRO made under the 2005 bus lane regime for this purpose should remain enforceable under the forthcoming 2022 regulations. This view also applies to bus gates introduced after the 2022 regulations enter force.
In coming to this view, the Department for Transport notes a 2010 High Court ruling statement that the question of the adequacy of traffic signing is a fact sensitive issue depending on the particular circumstances of a case. Local authorities should therefore seek their own legal advice if they have any particular concerns.
Though not critical for the transition to the 2022 regulations, those local authorities intending to acquire moving traffic enforcement powers will also need to ensure that their IT systems are ready to reflect the requirement in the forthcoming statutory guidance that, for a period of six months following implementation of moving traffic enforcement in practice, at each particular camera location, local authorities outside London should issue warning notices for first-time moving traffic contraventions. This also applies to any new camera location in the future. The warning notice should set out the six-month period and advise that any further moving traffic contravention at the same camera location would result in the issue of a PCN.I hadn't been aware that, as well as an initial period of a few weeks when they issue warnings rather than PCNs, traffic authorities outside London are expected to issue a warning rather than a PCN during the first six months of operation at a new site if the contravention is the first at the site by the vehicle involved.
Although outside the scope of statutory guidance, within London where moving traffic contraventions have been enforced for many years under the London Local Authorities and Transport for London Act 2003, enforcement authorities are expected to issue warning notices in the same way as set out above for first-time contraventions of cycle lane, cycle route and ‘buses prohibited’ contraventions (civilly enforceable in London for the first time from 00:00 on 31st May).
Restrictions don't apply during school holidays, inset days, weekends or bank holidays. See each school's website for details of its term dates and inset days.so their policy is clear and in conflict with the TMOs.
3. Without prejudice to the validity of anything done or to any liability incurred in respect of any act or omission before the coming into force of this Order, no person shall cause any vehicle to enter any road or length of road specified in column 2 of the Schedule to this Order during the corresponding prescribed hours specified in column 3 of the Schedule to this Order.
Schedule
column 2. Cambridge Road, between its junction with Pepys Road and its junction with Lambton Road
column 3. Between 8.15am and 9.15am and between 2.45pm and 4pm Mondays to Fridays
... a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider.Actions by public bodies can be challenged by judicial review, which is essentially concerned with whether or not the Rule of Reason has been observed. Many cases of judicial review turn on whether a public body has acted from improper motives or irrelevant considerations, or has failed to take account of relevant considerations. In either case, the body's actions may be found ultra vires and therefore void.
So they've removed all the "School term time" plates?I believe so. All the sites I’ve passed no longer have them.
What about their yellow advisory signs which also refer to school term time?They’re all still in place. They are non-compliant and inadequate in any case, but not necessarily required at every site.
Does this mean that they now issue PCNs during the school holidays?Not to my knowledge, but the TMOs I've seen make no mention of holidays to they could do if they wish.
If not, how do they square that with the administrative law doctrine of not taking account of irrelevant considerations?IMO there’s no legal requirement/duty for any council to actually issue PCNs.
Any idea when they started issuing PCNs for these signs, i.e. was it before 4 October 2022?Well before January 2022 for several sites in Merton, but don’t know the exact dates.
The traffic sign with diagram number 616 is a scheduled traffic sign for the purposes of section 4 (Penalty charges for road traffic contraventions) of this Act only if it indicates a restriction or prohibition which MAY BE indicated by another sign listed in the table.In other words, if the restriction is one which can be represented by a blue roundel such as diagram 953, it's OK. If it's a plain vanilla diagram 616, it's not (because contravening one of those cannot be the subject of civil enforcement).
(3) If the offence charged is one created by or under any Act, the description of the offence shall contain a reference to the section of the Act, or, as the case may be, the rule, order, regulation, bylaw or other instrument creating the offence.
fails to comply with an indication given by a scheduled section 36 traffic sign.but subsection (5)(a) is still engaged:
acts in contravention of a prescribed order;
Unfortunately, legislation.gov.uk only has LLATfL Act 2003 in its enacted form and one needs to check subsequent legislation to work out what the current version is. I searched for primary and secondary legislation since then which included the words "London Local Authorities" and within them for "2003". There are no SIs which are relevant and no Acts since 2013, so it's not surprising that I couldn't find any reference to diagram 618.3C in the Acts which do reference the LLATfL Act 2003; these are the LLA Act 2007 and the LLATfL Act 2008.Look at the this box:
Thank you. Does the source for your statement that diagram 618.3C is now included cite the legislation which amended Schedule 3 of LLATfL Act 2003?I assume southpaw82 just looked at the consolidated legislation on LexisNexis, but to answer your question see regulation 4 of The Civil Enforcement of Traffic Contraventions (Consequential Amendments) (England) Regulations 2018 (https://www.legislation.gov.uk/uksi/2018/488/regulation/4/).
The signs include permitted variants of the signs as described in the 2002 Regulations.Is there an analogous statement referencing TSRGD 2016 in the amended Schedule 3? If so, Merton's sign would appear still not to fall within its scope as "Except authorised vehicles" is not a permitted variant for the middle panel of diagram 618.3C.
Bus lanes
9.3.7. The times during which the bus lane operates are shown in the bottom panel of the signs to diagrams 958 and 959B. Where there is more than one bus lane along a particular length of road or within the same geographical area, the times of operation should be consistent, where possible, to avoid driver confusion. The working drawings show how time periods are accommodated within the fixed width of the signs. Time periods must be expressed in the manner described in S18‑1 (see also Chapter 7).
Pedestrian and Cycle Zones
6.2.2. Where the zone is operational for 24 hours on every day of the week, no times are shown on the sign other than those relating to the exceptions. If the zone is part‑time, the operational period is shown in the upper panel below the legend “No vehicles” or below the “no motor vehicles” roundel as appropriate. Where the zone operates only on certain days of the week and for 24 hours on those days, the days only are shown on the sign; the expression “At any time” is not used. Examples of the top panel for zone entry signs are shown in Figure 6‑3. The operational period is not normally shown where a variable message sign is used.
6.2.5. If the entry restrictions change during the day or on different days of the week, a variable message sign is recommended to avoid a complex legend that can be confusing and difficult to read. In this case, the upper panel should not include a time period. The sign should show a complete blank grey or black face, as defined in Schedule 1, during the times when the zone is not operational. The lower yellow panel can be displayed on the variable message sign only during the operational period of the zone (i.e. when the upper and middle panels are displayed).In effect DfT were saying: if it's complicated, use a variable message sign which lights up when the restrictions apply and is blank when they don't. That was based on their experience while the signs were special authorisation. Then they could reject signs which could not readily be understood from a moving vehicle.