Free Traffic Legal Advice

@cp8759 Thank you for your post with the TROs for Canal Street, Nottingham. I have been intrigued by a detail in the signage for this: the presence of "only" at the end of the plate "and wheelchair accessible taxis only". That "only" was required under TSRGD 1994 and TSRGD 2002 but was prohibited by TSRGD 2016. So what's going on in 2023 for such a plate to be installed?

The answer lies in the TRO which you posted and in the special authorisation which Nottingham are using. Some investigation has led me to send this FoI request to DfT, which sets out what's happened:

Dear Department for Transport,

Please supply details of specially-authorised traffic signs for which the Department has issued notices of removal or alteration since the issue of TSRGD 2016.

I have in mind that under TSRGD 1994 and TSRGD 2002 the "Only" plate (diagram 953.2) was mandated beneath blue roundels to diagram 953. TSRGD 2016 eliminated diagram 953.2 and prohibited its being placed at new installations (including routine replacement of old signs).

Before 2016, DfT had issued special authorisations for plates ending with the word "only" for use beneath diagram 953. TSRGD 2016 added to the standard plates for use below diagram 953 legend no. 17 "and authorised vehicles".

I would have expected DfT to advise holders of such special authorisations that they were not to be used for new signs. It may, of course, be that, as the authorisations refer to their accompanying signs which were being placed under the 2002 Regulations, the Department considered such advice superfluous.

I draw to your attention Plate A, "and wheelchair accessible taxi only" in https://assets.dft.gov.uk/trafficauths/c.... This authorisation was issued in 2011, but Nottingham City Council used it on Canal Street, Nottingham in 2023. The TRO asserts that the signs are being placed under TSRGD 2002 (!)

The vehicles which are permitted in addition to those shown on diagram 953 include not only wheelchair-accessible taxis but security vehicles operated by uniformed security personnel. That being so, the standard TSRGD 2016 plate "and authorised vehicles" would appear more appropriate. It requires no special authorisation.

While I wait for DfT's reply, those receiving PCNs on Canal Street may wish to craft collateral challenges based on Nottingham's irregular use of signage and the assertion in their TRO that the signage is being placed under TSRGD 2002. Nottingham are meticulous in their TROs, so it seems unlikely that this was accidental.

Those proceeding westbound on Canal Street appear to me to have the best chances of challenging PCNs on the grounds of adequacy of signage. The map-type advance notice sign is already dodgy in being placed so far from the line of sight of motorists and being surrounded by other signs.

Chapter 1 of the Traffic Signs Manual advises:

4.5.3. For safety reasons, drivers should not need to divert their eyes more than ten degrees away from the road ahead, meaning that the message on a sign must be fully absorbed before a driver reaches that position. As speeds increase, so must the legible distance, in order that the sign can be assimilated without unduly distracting attention from the road ahead.

The map-type sign is displaced 6-8m laterally from the line of sight of westbound motorists. That means that it ceases to lie within 10° of the line of sight once motorists have come within 40m of it. At that distance, the sign is seen as a vertical black line with a a right turn at a roundabout onto a horizontal black line. There are three patches of blue. Two are for parking (the large white "P" can be made out). The other, right at the top, so psychologically far away, is a blue roundel. The blue surrounding the white P indicates permission. Prohibitions are shown on our signs using red. (This is a beef which I have with blue roundels generally: where they show vehicles, people or horses, they symbolise exclusive use by them. Worboys' blue roundels were mandatory instructions: go left; straight ahead only; etc).

The sign's

• lateral placement
• positioning of the blue roundel so far from the roundabout
• surrounding signs, especially that to the right for the Restricted Parking Zone

render it ineffective in providing advance notice of the bus gate.

It is well-established case law that, if someone transgresses the terms of a traffic order, no contravention occurs if the local authority has failed to make adequate information available about the traffic order.

In R (Neil Herron et al) v The Parking Adjudicator [2011] EWCA Civ 905 Lord Justice Burnton found  (Lord Justice Aikens and Sir David Keene concurring) :

35. It has long been recognised that the enforceability of a [traffic order] requires that adequate notice of the applicable restriction is given to the road user. This principle is derived from the duty imposed by Regulation 18 of [LATOR 1996]. In Macleod v Hamilton 1965 SLT 305 Lord Clyde said, at 308

It was an integral part of the statutory scheme for a traffic regulation order that notice by means of traffic signs should be given to the public using the roads which were restricted so as to warn users of their obligations. Unless these traffic signs were there accordingly and the opportunity was thus afforded to the public to know what they could not legally do, no offence would be committed. It would, indeed, be anomalous and absurd were the position otherwise. ...

36. That principle was approved and applied by the Divisional Court in James v Cavey [1967] 2 QB 676. Giving a judgment with which the other members of the court [Justices Ashworth and Widgery] agreed, [Lord Justice] Winn said:

... The short answer in my view which requires that this appeal should be allowed is that the local authority here did not take such steps as they were required to take under that regulation. They did not take steps which clearly could have been taken and which clearly would have been practicable to cause adequate information to be given to persons using the road by the signs which they erected. …

This was a judgment in the Court of Appeal, so is binding on the High Court as well as on tribunals and adjudicators.

The assessment of the adequacy of the signage therefore covers not only signs which were present but also signs which could have been placed.

What would be much more effective would be a sign to diagram 877 (TSRGD 2016 Schedule 11 Part 2 Item 22). The sign would be the mirror image of the leftmost lane in the version in the second row. It would show a single vertical black line with a red bar across it, above which would be the words "Bus lane". There would be a right-pointing arrow before the red bar. This conveys the essential information and can be read and understood quickly. Given the lateral displacement of the sign, it would need to be a large size, preferably a height of 1800.

There are no road markings on the approach to the roundabout suggesting the direction in which to turn. In this situation, it would be normal for there to be a right-turn arrow to diagram 1038 before the roundabout with the words "ALL ROUTES" before it.

At the roundabout, the blue roundels of the bus restriction are more than 40m away. They are 600mm in diameter. They are the only visible indication of a bus restriction on proceeding straight ahead. At the exit from the roundabout there should be a map-type advance direction sign which takes the form of the top half of the current advance direction sign at the junction with Trent Street.

This sign should be designed and implemented under current legislation, i.e. TSRGD 2016 and not be a hybrid of a sign prescribed under Schedule 12 of TSRGD 2016 with symbols from TSRGD 2016 Schedule 12 Part 20 and a specially-authorised plate which can only be used under TSRGD 2002 (see the special authorisation). Either there should be no plate beneath the blue roundel or it should be the prescribed plate "and authorised vehicles". This would, in any case, be more appropriate as security vehicles with uniformed security personnel are also permitted through the bus gate.

The road marking "CAR PARK" on the first exit would be more effective in indicating that this exit leads for most traffic only to the car park if it were closer to the roundabout. The drivers of buses and wheelchair-accessible taxis know where they're going and don't need to be told that they can pass through the bus gate.

Traffic Signs Policy Review 2011

In October 2011, DfT published Traffic signs policy paper: signing the way. Reporting that The Traffic Signs (Amendment) Regulations and General Directions 2011 would reduce by 40% the number of special authorisations local authorities had to seek, it went on to say that the Department had further reduced the burden by issuing local authorities with authorisations.

These were two sets of special authorisations which were issued to each local authority individually (the links are to the authorisations to Lancashire County Council):

• 17 November 2011: Traffic Signs Policy Review Area-wide Authorisation
• 17 November 2011: Traffic Signs Policy Review Area-Wide Special Direction

It was as though the Department had realised that it should have put more signs in the Amendment Regulations, but didn't want to make them as a further set of Amendment Regulations. Instead it issued them to all authorities as special authorisations which they hadn't asked for.

The Department repeated this process three times in 2012:

• 17 February 2012: Traffic signs policy review area-wide authorisation second edition (trixi mirrors)
• 5 March 2012: Traffic signs policy review area-wide authorisation third edition
• 1 October 2012: National authorisation for portable traffic signals (area-wide)

As foreshadowed in the Policy Paper, the Department was working on a substantial revamp of the Traffic Signs Regulations, which it issued as TSRGD 2016.

This process is relevant today because some of the signs in these special authorisations were not included in TSRGD 2016 and so, when the sign is used today, it is under a special authorisation from 2011-12. An example is the yellow plate waiting restriction on motor caravans. It appears that this sign got into the special authorisation because the MP for Scarborough and Whitby, Robert Goodwill, wrote to DfT in early 2012 asking them to do something to make parking restrictions on motor caravans enforceable.

The Department appears to have issued special authorisations to all local authorities on one further occasion:

• 14 December 2023: Small Wild Animals Warning Sign, Area-wide. (squirrels, badgers, otters, hedgehogs)

I've looked some more into what sort of parking restrictions councils can impose on specific classes of vehicle. The answer is that they can restrict HGVs and buses separately or together using controlled parking zones. The signs are here. If you scroll down a little, you'll find signs which include a black lorry with "5 t" in white on it. As the text explains:

In some areas, local authorities operate special goods vehicle waiting restrictions. Usually these apply to goods vehicles of over 5 or 7.5 tonnes maximum gross weight. Where the same restrictions apply throughout a zone, usually overnight, the times are indicated on a zone entry sign. Within the zone there are no yellow lines (unless there are other waiting restrictions applying to all vehicles), but there should be repeater signs on each side of every street as a reminder. There are equivalent signs for buses with the bus symbol, and signs that apply to both goods vehicles and buses.

As there are no yellow lines associated with these restrictions, there have to be upright repeater signs on plates to alert drivers to the restrictions. There also have to be signs at the end of the zone to indicate that it's ended.

West Sussex appear to be attempting to create their own equivalent for motor caravans, but without the entry and exit signs for the zone. As it's a completely new type of controlled parking zone not covered by TSRGD, they'd need special authorisation from DfT. DfT would likely insist that it included a symbol which represented motor caravans; this would be a first for British traffic signs.

@Ducato It's up to local authorities as to whether they make their TROs available on their website. Some do. Most don't. If you get a ticket, they don't tell you at that stage what the TRO is, but they do put it in their evidence if it goes to appeal before an adjudicator. If you get a ticket, try phoning or emailing the council to ask for the TRO. You can also put in a Freedom of Information request for it, which they are obliged to answer (but not before you have to make representations against a PCN).

Legally-enforceable parking restrictions always specify the hours when the restrictions apply. "Overnight" isn't a recognised term. That creates problems for the council which wants to apply restrictions without the cost of sending someone out in the small hours to photograph and ticket the vehicles.

West Sussex have at least specified the hours, so the restriction is potentially enforceable. Their problem is that when local authorities make TROs, regulation 18 of The Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996 requires them to place traffic signs to show the effects of the order. These must be "proper" traffic signs as specified in The Traffic Signs Regulations and General Directions 2016 (as amended) or as specially authorised by DfT. If the Council doesn't do this,

• its actions aren't lawful and can be challenged;
• there is well-defined case law that, if there isn't adequate signage (meaning "proper" traffic signs) for a restriction, no contravention occurs and there is no civil liability.
  

Having said that, it's a load of hassle to challenge a PCN, so many people pay up within two weeks of receiving a PCN so as to qualify for the "discount".

If you do get a PCN at a site where there's a sign which doesn't specify times or which applies only to motor caravans, when you ask the council for the TRO, also say that you don't think the sign is in accordance with TSRGD 2016 and that you'd like to see their special authorisation from DfT to place that sign on the public highway. Tell them that, as Mr (later Lord Justice) Beatson said at paragraph 65 of this judgment in R (Oxfordshire CC) v The Bus Lane Adjudicator [2010] EWHC 894 (Admin)

The Defendant's submission that the fact that signs are prescribed or authorised does not mean they are sufficient for securing adequate information as to the effect of an order is made available to road users is clearly correct. If the signs do not in fact provide adequate information no offence is committed; see James v Cavey [1967] 2 QB 676. Such information is a requirement and, as Jackson J stated in R (Barnett LBC) v Parking Adjudicator [2006] EWHC 2357 (Admin) at [41], if the statutory conditions are not met the financial liability does not arise.

In other words, it's a prerequisite that the signs are specified in TSRGD 2016 or specially authorised by Dft. Even if they are, that isn't enough. The signs must provide adequate information of the restriction.

@satsuki726 In due course, please also post Harrow's response to your representations.

I don't think Harrow understand their TMOs on Camrose Avenue. I asked them about the overlap between the two TMOs. They said that when a new bus-priority TMO was made, this automatically revoked the width-restriction TMO insofar as it applied to the bus lanes.

That is not correct. The authors of the width-restriction TMO were clever: they set it up to allow for other TMOs on the non-width-restricted parts of the carriageway, so both TMOs apply simultaneously.

Harrow's explanation of why the bus-priority TMO specifies that westbound the bus-priority restriction lies to the south of the southern traffic island is that the traffic island which splits westbound traffic is the southern of the two traffic islands facing westbound traffic. This appears to me to be post hoc rationalisation of something which they couldn't understand but which had been in the TMO for years, "so it must be true" (aka "it's too ghastly to admit we've ***ed up").

If there were two traffic islands facing westbound traffic and two traffic islands facing eastbound traffic (as required to explain the "northern traffic island" in that part of the TMO), there would be four traffic islands in total.

There are not. There are three kerbed structures at the restrictions:

• the south-western traffic island, which splits eastbound traffic
• the north-eastern traffic island, which splits westbound traffic
• the central median strip, which divides eastbound from westbound traffic

TMOs use formal language. There is nothing in the TMO to suggest that the geographic designation "southern" relates to "as viewed by an approaching motorist who regards the central median strip as a traffic island".

The fact that the width-restriction TMO transforms the south-western traffic island into the "western" one for the prohibited length and the north-eastern one into the "eastern" one demonstrates that these compass points have their normal meaning and are not relative to some other (unspecified) object.

@satsuki726 My view is that the arguments against PCNs at Camrose Avenue are strong. But you need to understand that you are taking a risk as logic and legal argument may not prevail.

I suggest the representations below (which are not specific to your case and could be used by anyone who receives a PCN on Camrose Avenue).

While point 1 may seem abstruse, it's a bit like a "poison pill" which companies put in place to protect against takeovers. Most people, adjudicators included, like a simple life. They are on a treadmill of cases and have a fixed time allocation for each one. They prefer to avoid issues which are challenging. This is especially true if allowing an appeal on those grounds would lead to a demand from the council for a review.

In this case, allowing an appeal on ground 1 would amount to finding that the TMO, although legally valid (because, by legislation, that follows automatically if it hasn't been challenged within 6 weeks of its being made) was unenforceable. That would raise the question of whether all the PCNs issued since 2007 would have been wrongful and needed to be refunded.

While Harrow might just sit out a few losses, if lots of appeals went against them on these grounds or the political heat rose, Harrow would eventually seek judicial review. This is the last thing which the Environment and Traffic Adjudicators want. They have a budget and have to bear the costs of defending themselves in judicial reviews. The appellant against the PCN is named as a third party in the judicial review but usually does not appear: the case is between the council and the adjudicators as a public body.

The consequence is that adjudicators inevitably shy away from considering tough issues, especially if they may lead to a finding that the TMO is unenforceable. But they're obliged to be fair and they are trained lawyers. So they prefer to allow an appeal on another, less controversial, ground. The council is happy with this as it, too, much prefers the status quo.

By far the best outcome for both the adjudicators and the council is if the adjudicator can allow the appeal on grounds which do not set a precedent for other cases. This applies if the appellant appears at the hearing and the adjudicator can then say:

Mr X appeared before me and said ... I found him a credible witness and find, as a matter of fact, that ...  I therefore allow the appeal.

Such findings of fact cannot be overturned except in extreme cases.

I would therefore advise you, if at all possible, to add your own final grounds of appeal. This should be something which happened to you which you argue means that they should allow your appeal. Don't worry if it seems a bit feeble. It's a get-out which enables them to allow the appeal without setting a precedent.

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Representations against PCN no. XXXXX for Contravention 33E on Camrose Avenue

The PCN alleges contravention 33E - USING A ROUTE RESTRICTED TO CERTAIN VEHICLES BUSES CYCLES AND TAXIS ONLY.

I reject this allegation. No contravention occurred for the following reasons:

1. The Harrow (Bus Priority) Traffic Order 2016, which supposedly underlies the allegation, does not, in fact, restrict traffic using the inside lane between the traffic island and the footway to buses, cycles and taxis only. Instead the restrictions which it defines apply in each direction between the traffic island and the central median strip. This is because the Council made a mistake in 1999 when consolidating bus restrictions into a single TMO.

The Harrow (Prescribed Routes) (No. 2) Traffic Order 1976 was the original TMO for Camrose Avenue. It defined both the width restriction and the bus-only restriction (as they then were). The latter applied:

on the south-eastern side of the north-easternmost island site [and] on the north-west side of the south-westernmost island site

In 1999 Harrow consolidated the various individual TMOs into two TMOs, one for width restrictions and one for bus-priority restrictions.

The Harrow (Prescribed Route) (Width Restriction) Traffic Order 1999 defined "prohibited lengths" between "the eastern island" and "the southern kerb-line" and between the "western island" and the "northern kerb-line". All traffic was banned here unless permitted under another TMO.

The Harrow (Bus Priority) Traffic Order 1999 defined the areas of road to which bus-restrictions applied as:

Westbound: the carriageway to the south of the southern traffic island immediately to the west of its junction with Dale Avenue;
Eastbound: the carriageway to the north of the northern traffic island immediately to the west of its junction with Dale Avenue.

Thus the 1999 consolidated orders transformed the north-eastern traffic island into "the eastern traffic island" in the width-restriction order but "the southern traffic island" in the bus-priority order. Likewise, the orders transformed the south-western traffic island into "the western traffic island" in the width-restriction order but "the northern traffic island" in the bus-priority order. The mistakes in the bus-priority order have been repeated in subsequent TMOs up to and including the current ones.

Inspection of a plan of the site shows that the entire south-western traffic island (which splits eastbound traffic) lies to the south of the entire north-eastern traffic island (which splits westbound traffic). There is only one possible interpretation of "southern traffic island" and it is what the 1976 TMO referred to as "the south-westernmost island site". No amount of creative interpretation can turn "southern" into "western" or "northern". The bus-priority TMOs contain mistakes in their compass-points. The consequences must be allowed to play out.

The TMOs are local legislation. They define the restrictions which apply. The signage is placed to show the effect of the TMOs. The presence of signage purportedly restricting the lanes between the traffic islands and the footway to buses, cycles and taxis does not create such a restriction. Nor does the placing of signage assist the courts in interpreting what the TMO means. The TMOs themselves do that.


2. The Council has failed to provide adequate information about the restrictions which it imposes. Regulation 18 of The Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996 (LATOR) requires the placing of such traffic signs as the Council

consider requisite for securing that adequate information as to the effect of the order is made available to persons using the road

In R (Oxfordshire CC) v The Bus Lane Adjudicator [2010] EWHC 894 (Admin), Beatson J found:

65. The Defendant's submission that the fact that signs are prescribed or authorised does not mean they are sufficient for securing adequate information as to the effect of an order is made available to road users is clearly correct. If the signs do not in fact provide adequate information no offence is committed; see James v Cavey [1967] 2 QB 676.

In James v Cavey, Winn LJ wrote (Ashworth and Widgery JJ concurring):

The short answer in my view which requires that this appeal should be allowed is that the local authority here did not take such steps as they were required to take under that regulation. They did not take steps which clearly could have been taken and which clearly would have been practicable to cause adequate information to be given to persons using the road by the signs which they erected. ...

This paragraph was quoted with approval by Burnton LJ at paragraph 36 of the judgment in R (Neil Herron et al) v The Parking Adjudicator [2011] EWCA Civ 905 (Aikens LJ and Sir David Keene concurring). It remains current jurisprudence binding on the High Court as well as on tribunals and adjudicators.

The assessment of the adequacy of the signage therefore covers not only signs which were present but also signs which could have been placed but which had not.

The first signage of a bus restriction which motorists see are the blue roundels (diagram 953) at the restrictions. Long before this, there are notices of the width restriction ahead, including on side roads warning of the width restriction if motorists turn towards the restriction. Those advance notice signs show one of the effects of the width-restriction TMO: the width-restriction which applies to the outer lane at the restriction.

But the width-restriction TMO actually applies restrictions to both lanes westbound and both lanes eastbound. In the inside lane, it allows vehicles which are permitted by other TMOs. The Council asserts that the bus-priority TMO allows buses, cycles and taxis in the inside lanes. It follows that, as far as the Council is concerned, the effects of the width-priority TMO include permitting buses, cycles and taxis to avoid the width restriction in the outer lane. Yet the Council has chosen not to show these as effects of the width-restriction TMO. This means, for instance, that drivers of vehicles with 8 or more seats for passengers (the definition of "bus"), such as those used by schools and care homes, are not told that they can bypass the width restriction in the outer lane.

If the full effects of the width-restriction TMO were shown in advance, motorists who are not driving buses would be aware that a bus restriction lay ahead in the inside lane while a 2m width restriction applied to the outer lane (such a sign has only been prescribed since 2016; before then, special permission would have been required).

Motorists would also be aware of the bus restriction ahead if signs to diagram 877 were placed 20m before the restrictions. This sign, which shows that the inside lane turns into a bus lane at the junction ahead, has been available since 1975.

Since 2016, more explicit "lane gain" signs have also been available under Schedule 12 of TSRGD 2016. These can be configured to show that a single lane splits into two lanes ahead and the restrictions which apply to each: in this instance, that the inside lane is for buses, cycles and taxis, while the outer lane has a 2.0m width restriction. These signs can also show where turns can be made into side roads.

In an important report into the bus gate on John Dobson Street, Newcastle, the Chief Adjudicator observed:

5.17. ... Buses can reasonably be anticipated on a bus route, in both directions, and in bus lanes. There will inevitably be frequent times when a driver is following a bus, which is also likely to stop at a bus stop. Therefore, the presence of buses must be factored in to sign design and engineering.

When bus lanes start, there is a dashed white line (diagram 1010) 250 or 300mm wide diagonally across the lane which tells motorists that the lane is about to become a bus lane. This isn't present for bus gates, so upright signs such as diagram 877 are vital.

As it is, there is no advance signage on Camrose Avenue of the bus restriction. The first indication motorists see are the blue roundels to diagram 953. These are not advance notice signs: they are regulatory signs which must be placed at the restriction. Those on Camrose Avenue are 600mm diameter. Appendix A to Chapter 3 of the Traffic Signs Manual specifies that, where the 85th percentile speed of private cars using the road is between 21 and 30 mph, this sign should be 750mm in diameter. As the Appendix notes:

It should be borne in mind that smaller signs are likely to be seen later, and do not become legible until drivers are closer to them, with less time to react.

3. The Council asserts that the restriction is correctly and clearly signed and can be seen at any time of the day. By default, councils are entitled to the Presumption of Regularity. This holds that councils do things correctly in accordance with the law and that what they say is true. The previous two points have shown that Harrow Council have:

• made mistakes in drawing up the 1999 bus-priority TMO which have been repeated ever since;
• placed advance signs for the width-restriction TMO which failed to comply with Regulation 18 of LATOR 1996;
• failed to provide advance signage of the bus-priority restriction.

I shall now demonstrate how some signage which has been placed (and on which Harrow rely) is not as prescribed in the Traffic Signs Regulations and General Directions 2016 (TSRGD). This makes the placing of those signs ultra vires. While the signs are indeed present on the highway, administrative law dictates that the misfeasor (Harrow Council) cannot use those signs in making its case.

It follows that the adjudicator must disregard the signs in assessing the adequacy of the signage. This is quite different to the latitude granted by the judgment in R (Neil Herron et al) v The Parking Adjudicator to minor defects in the signage of zones. That case was concerned with a parking zone where there are many signs across the zone. The court held that defects in a few signs, which were remote from the site of the alleged contravention, did not invalidate the zone as a whole. Here we are concerned with whether individual signs have been placed lawfully.

The signs in question are two curved white arrows on the carriageway before the restriction. Harrow calls these "directional white arrows" which "give motorists guidance as to the lane they should be travelling in".

These arrows are known technically as "deflection arrows". They are defined as diagram 1014 at Item 14 in TSRGD 2016 Schedule 11 Part 4. The description is:

(a) direction in which vehicular traffic should pass a road marking [followed by a list];
(b) obstruction on the carriageway ahead;
(c) reduction in the number to traffic lanes in the carriageway ahead; or
(d) path to be taken by vehicular traffic to avoid a route for tramcars only

Of these, (d) is irrelevant, as is (c). As regards (b), it would be stretching the meaning of “obstruction” to regard a traffic island as an obstruction. That leaves passing one of the specified road markings.

The relevant road markings specified in TSRGD 2016 are:

Schedule 9 Part 6
    Item 7: boundary of a mandatory cycle lane (diagram 1049B);
    Item11: boundary of a bus lane (diagram 1049A);
    Item 23: white line markings which must not be crossed and where it is prohibited to stop (diagram 1013.1);
Schedule 11 Part 4
    Item 23: white hatching with broken boundary between opposing directions of travel (diagram 1040);
    Item 24: white hatching with a solid boundary at an offside reduction in width (diagram 1040.3);
    Item 25: white hatching with a broken boundary at a nearside reduction in width (diagram 1040.4).

None of these is present on Camrose Avenue. The markings in front of the traffic islands are to diagram 1041, which is very similar to diagram 1040 but has chevron hatching rather than diagonal hatching.

As there is no relevant road marking, the signs to diagram 1014 are not as prescribed in TSRGD 2016.

Section 65 of Road Traffic Regulation Act 1984 empowers Councils to

cause or permit traffic signs to be placed on or near a road

Section 64 defines "traffic signs" as signs specified by regulations (i.e. TSRGD) or authorised by the relevant authority (i.e. specially authorised by DfT). Harrow has not obtained special permission to place diagram 1014 in a non-prescribed way on Camrose Avenue.

It follows that the signs have not been placed in accordance with the powers granted to the Council. The Council acted ultra vires in placing those signs. They must not be considered as present on the carriageway when assessing the adequacy of the signage.


4. Case-specific argument to be written by the appellant.

DfT Advice Note about Moving Traffic Contraventions
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@John_S I happened across Civil Enforcement of Parking, Bus Lane, and Moving Traffic Contraventions – Updated Advice Note issued by DfT in March 2022. The Annex (pp 6-8) sets out "Traffic Signs Subject to Moving Traffic Enforcement" (with my italics):

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 ]

It does, therefore, look very much as though DfT did not intend to allow civil enforcement of contraventions involving specially-authorised traffic signs. This Advice Note is addressed to London local authorities, including Merton, as well as those outside London.


PCNs involving contravention of diagram 953A or 953B
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In the body of the Advice Note, DfT opined:

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.

The 2010 High Court ruling is evidently the Oxford bus gate case. It allows PCNs to be issued in respect of bus gates under Part 2 of Schedule 7 of Traffic Management Act 2004 (or the equivalent in London). However, to use this judgment, the PCN must be for a contravention which relates to being in a bus lane, i.e. code 34.

But what actually happens at bus gates? The PCN issued is usually 33E - Using a route restricted to certain vehicles: buses, cycles and taxis only. This is a moving traffic contravention issued under Part 4 of Schedule 7 of Traffic Management Act 2004 (or the equivalent s.4 of LLATfL Act 2003 in London). If the bus gate uses a diagram 953 (or an equivalent diagram 616 with an Except plate), that's fine.

If the bus gate uses diagram 953A or 953B (i.e. it allows solo motor cycles through), they can't use Part 4. Instead they must use Part 2 with contravention code 34J: Being in a bus lane. I've checked Cumberland Road, Bristol: they do use 34J. I thought I was on to something. Apparently not, except that it does confirm that local authorities don't use moving traffic contraventions when the associated traffic sign isn't in the list. It also makes the judgment in the Oxford bus gate case central to adjudications of such PCNs: they can't pick and choose from the judgment they're relying on.


Issuing Warnings for First-time Contraventions in First Six Months
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The body of the document includes this statement (italics used instead of underlining in the original):

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.

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).

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.

I wonder whether this is observed?-