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#Post#: 32283--------------------------------------------------
Re: 31J Entering and stopping ina box junction when prohibited
DIR By: Donostio
Date: August 5, 2024, 7:41 am
---------------------------------------------------------
So. I have a date for Tribunal (21st August) and and response
from Merton.
They argue that their portal and letter (sent to me - it thread
above) had been updated to ensure they are compliant - I'm not
sure if that's the case. Any thoughts?
Also, their own evidence photo shows that I could have rolled
forward three feet out of the box if I was causing an
obstruction (aside from the space of the right). Though I know
that the space of the right is no longer a defence and I don't
imagine that the three feet in front is either.
Here's my submission (their response is below):
Reason for appeal
I have had to take advice and then conduct research which took
longer than I expected. I also wrongly thought, due to the
unlawful directions from Merton Borough Council that the window
for me to submit had passed when it had not.
There are four parts to my appeal:
1.The box junction is not placed at the junction of two or more
roads or outside a police, fire or ambulance station. The box
junction is situated at the entrance to the private driveway to
an apartment complex, the Traffic Signs Regulations and General
Directions 2016 do not permit box junction markings at such a
location. Please see the images where the road is clearly marked
‘Private Property’.
It follows that no contravention can ever occur at this
location, enforcement must cease and the CCTV enforcement camera
at this location must be removed. As there is no traffic
enforcement justification for the camera at this location,
failure to remove or at least disable the camera would result in
the unlawful and unjustified capture of personal data, in
contravention of the General Data Protection Regulation.
2.The information referenced in the second paragraph of the
second page of the PCN (and in the online portal where
additional categories are also added) does not convey the
contents of paragraph 1(4) of Schedule 1 to the London Local
Authorities and Transport for London Act 2003, and it follows
that the PCN must be cancelled.
There is precedent for this in case reference 2230446542
(Appellant Commercial Plant Services Ltd and Authority London
Borough of Merton VRM LJ20 WRP):
“The Enforcement Authority can indicate extra reasons for which
it may exercise discretion, but it cannot exclude the grounds
clearly provided by Statute. Considering carefully all the
evidence before me I find that the Enforcement Authority have
failed to comply with the requirements of the 2003 Act.
Accordingly, this appeal must be allowed and no other issue need
be determined.”
3. The notice of rejection wrongly stated that I did not have
the option to pay and still appeal.
4. and the notice of rejection wrongly stated that there isn’t a
grace period after the 28 days to submit.
Precedent for 2. and 3. : Case reference, 2240027331 (Appellant
Commercial Plant Services Ltd and Authority London Borough of
Merton VRM WS19 OEJ). "In respect of the EA’s contention as to
the
additional two day period it allows after the end of the 28 day
period starting
with the date of the notice of rejection, this cannot exempt the
EA from what
paragraph 3 expressly states a notice of rejection ‘must’ say.
There has in
this case been a departure from the mandatory requirements of
paragraph
"
“The simple facts of the matter are that, in that case, I found
that the wording of the notice of rejection materially
mis-stated the time limit within which payment must be made and
wrongly stated that no appeal to an adjudicator may be made if
the PCN is paid. Both those material misstatements were
departures from the requirements of the statutory scheme for the
enforcement of PCNs and were, if it was necessary, capable of
causing prejudice. I upheld the collateral challenge to the PCN”
Uploaded evidence
Description
Image of the road marked private
Upload date
22nd Jul 2024 14:19
File name
Screenshot 2024-07-22 13.50.12.png
Description
Appeal rejection letter
Upload date
22nd Jul 2024 14:20
File name
19D7F7ECECEF6.PDF
Description
PCN sheet1
Upload date
22nd Jul 2024 14:21
File name
PXL_20240403_162617941.jpg
Description
PCN sheet2
Upload date
22nd Jul 2024 14:21
File name
PXL_20240403_162623840.jpg
Description
Web portal with reasons to appeal
Upload date
22nd Jul 2024 14:22
File name
Screenshot 2024-07-22 13.58.47.png
Description
Case reference, 2240027331
Upload date
22nd Jul 2024 14:24
File name
Commercial Plant Services Ltd v London Borough of Merton
(2240027331, 13 March 2024).pdf
Description
case reference 2230446542
Upload date
22nd Jul 2024 14:26
File name
Commercial Plant Services Ltd v London Borough of Merton
(2230446542, 11 December 2023).pdf
Description
Case reference 2220586920
Upload date
22nd Jul 2024 14:28
File name
Giles Kennedy v London Borough of Merton (2220586920, 8 October
2022).pdf
Hearing details
Attending hearing
Yes
Reasonable adjustments
No
Merton submitted:
LONDON BOROUGH OF MERTON CASE SUMMARY
CASE REF: 2240331026
PCN: MT87744271
NAME: Mr Gary James Shearin
The facts of this case are that the vehicle EN14NXK owned by Mr
Gary James Shearin was observed taking part in the following
contravention of a prescribed order or failure to comply with an
indication given by a traffic sign: Entering and stopping in a
box junction when prohibited. The contravention or failure
occurred on MTC- Durnsford Road adjacent to Bassett House (Box
junction) at 16:34 on 14/03/2024. The penalty charge notice,
issued under the London Local Authorities and Transport for
London Act 2003, was sent to the registered keeper of the
vehicle on 02/04/2024.
The council firstly advises that the Highway Code clearly states
that you must not enter a box junction unless your exit is
clear. Therefore, as it is not always possible to see or
anticipate what is happening ahead, particularly if there is a
large vehicle in front of you, drivers should not enter a box
junction unless they are sure they can move forward and fully
exit the box without having to stop at all. Rule 174. Box
junctions. These have criss-cross yellow lines painted on the
road (see 'Road markings'). You MUST NOT enter the box until
your exit road or lane is clear. However, you may enter the box
and wait when you want to turn right, and are only stopped from
doing so by oncoming traffic, or by other vehicles waiting to
turn right. At signalled roundabouts you MUST NOT enter the box
unless you can cross over it completely without stopping. In
addition, the Traffic Signs Regulations and General Directions
2016 state that 'no person shall cause a vehicle to enter the
box junction so that the vehicle has to stop within the box
junction due to stationary vehicles.' This refers to any
stationary vehicle ahead, not just the one immediately in front.
Upon review of the CCTV evidence, a copy of which is available
to view online via our website www.merton.gov.uk., vehicle
EN14NXK is seen entering the box junction at about 16:34:33 when
the vehicle in front was still fully in the box, and therefore
there was not sufficient space at the exit of the lane the
vehicle was in for the driver to guarantee being able to clear
the box without stopping. The vehicle then stops at about
16:34:44 whilst still partially within the box and does not move
again until about 16:35:27.
Whilst I note the appellant's comments in point 1, I must advise
that the yellow box
junction in this instance is considered essential to maintain
flow of traffic and to
ensure that traffic queues do not impact the signalised junction
due to motorists
waiting to turn right into the estate. It also ensures that
motorists from this estate
can exit.
Yellow box junctions are permitted across junctions / access
roads even including
access to private roads and estates.
The box junction at this location is therefore compliant and in
accordance with regulations.
Whilst the appellants comments have been noted regarding the
wording that is stated on our Notice of Rejection and had
referred to past appeals. The council must advise that decisions
of past cases are made on their own merit and decisions made by
one adjudicator may not be the same of another. However the
wording of the Notice of Rejections referred to does not reflect
the wording on the Notice of Rejection issued to the appellant
on 21/06/2024. In addition this Notice of Rejection only refers
to the motorist right to appeal to the adjudicator and makes no
reference to not being able to pay and appeal. Please refer to
evidence E.
Following the outcome of the case reference 2230446542 which the
appellant refers to our website was amended to ensure that all
statutory grounds for making representations as outlined on the
Penalty Charge Notice (PCN) were included on our website when
the motorist challenges their PCN. This is supported in the
evidence provided by the appellant tilted "Screenshot 2024-07-22
13.58.47.png" which includes all statutory grounds. This can be
found on our website
HTML https://parkingweb.merton.gov.uk/pcn/
The Council advises that the Highway Code clearly states that
you must not enter a box junction unless your exit is clear.
The outstanding amount of £130.00 is now due. The council finds
no grounds to accept the reduced amount of £65.00, due to the
fact that Mr Shearin was given the opportunity to pay the lower
rate following the councils Notice of Rejection. Instead
however, he decided to appeal to the adjudicator. The council is
not obliged to continue to offer the reduced amount as
settlement.
Miss O'Connell Parking Services
#Post#: 32298--------------------------------------------------
Re: 31J Entering and stopping ina box junction when prohibited
DIR By: Pastmybest
Date: August 5, 2024, 10:20 am
---------------------------------------------------------
Another point is that the tribunal do not allow that the council
supply the video via there website and must submit a copy to the
tribunal
2210208756
The Authority has not complied with the requirements for
providing CCTV evidence directed by the Tribunal in the Chief
Adjudicator's Practice Direction which reads:
'The Civil Enforcement of Parking Contraventions (England)
Representations and Appeals Regulations 2007 require parties to
an appeal to deliver evidence to the Proper Officer. Evidence
must be submitted in an immediately accessible form. It is
expected that when an enforcement authority is relying on moving
images, where a DVD containing the evidence is not provided, the
relevant CCTV evidence will be presented in a file containing
the uploaded evidence and included in the authority’s evidence
bundle. Providing a hyperlink to an authority’s website is not
considered to be a proper delivery or submission of evidence.
Authorities will also be aware that using this system has
resulted in adjudicators allowing appeals, when they have been
unable to access or view evidence; this does not occur when the
evidence is correctly submitted. The evidence form category type
K, will be amended to refer to “CCTV uploaded evidence” and from
4th April 2020 authorities must submit the evidence in the
required format. (Providing the evidence in DVD form under
category type J “unscannable evidence” remains acceptable).'
Therefore I do not have before me any CCTV evidence showing the
appellant's vehicle stationary in the box junction. Stills are
not adequate evidence as I cannot be satisfied the vehicle is
stationary. The Authority cannot rely on any evidence or
apparent admissions made by the appellant. I must decide if the
Authority has shown there is a case to answer before I look at
the appellant's evidence. In this case it has not done so.
It is for the Authority to prove its case and in the absence of
adequate evidence it has not done so. I therefore allow the
appeal on that basis.
#Post#: 32328--------------------------------------------------
Re: 31J Entering and stopping ina box junction when prohibited
DIR By: mickR
Date: August 5, 2024, 12:58 pm
---------------------------------------------------------
--- Quote from: Donostio link ---
>
> 1.The box junction is not placed at the junction of two or
more roads or outside a police, fire or ambulance station. The
box junction is situated at the entrance to the private driveway
to an apartment complex, the Traffic Signs Regulations and
General Directions 2016 do not permit box junction markings at
such a location. Please see the images where the road is clearly
marked ‘Private Property’.It follows that no contravention can
ever occur at this location, enforcement must cease and the CCTV
enforcement camera at this location must be removed. As there is
no traffic enforcement justification for the camera at this
location, failure to remove or at least disable the camera would
result in the unlawful and unjustified capture of personal
data.........
>
> Merton....
>
> Whilst I note the appellant's comments in point 1, I must
advise that the yellow box
> junction in this instance is considered essential to maintain
flow of traffic and to
> ensure that traffic queues do not impact the signalised
junction due to motorists waiting to turn right into the estate.
It also ensures that motorists from this estate can exit.
>
> Yellow box junctions are permitted across junctions / access
roads even including access to private roads and estates.
>
> The box junction at this location is therefore compliant and
in accordance with regulations.
>
> Miss O'Connell Parking Services
>
--- End Quote ---
she seems to have a very high office if she can make up laws
herself.
#Post#: 40025--------------------------------------------------
Re: 31J Entering and stopping ina box junction when prohibited
DIR By: Donostio
Date: October 9, 2024, 11:15 am
---------------------------------------------------------
Poor advice here.
The 'private road' argument is baseless in this case, as long as
the mouth is 'maintained' / has road markings a box junction can
be in place. The adjudicator doesn't know or care how the video
has arrived (the administrators will have downloaded it if only
a link was sent).
This cost me a lot more that it needed to (in time and grief
too) - I got a charge certificate added on top of the double
fine - since I was expecting a new link to pay the higher
amount. £195 instead of the £65 if I'd just paid the fine.
Adjudicator's Reasons
At this scheduled personal hearing the Appellant attended in
person.
The Enforcement Authority did not attend and were not
represented.
Under Paragraph 11(1) in Part 7 of Schedule 9 to the Traffic
Signs Regulations and General
Directions 2016 ('the 2016 Regulations') a box junction marking
conveys the prohibition that a person
must not cause a vehicle to enter the box junction so that the
vehicle has to stop within the box
marking due to the presence of a stationary vehicle.
The Penalty Charge Notice was issued under Section 4(1) of the
London Local Authorities and
Transport for London Act 2003 ('the 2003 Act') on the basis of
information provided by a camera or
other device. There appears to be no dispute that the vehicle
was at this location, as shown in the
closed-circuit television (cctv) images produced by the
Enforcement Authority.
The images clearly show that the vehicle did enter this box
junction marking and then had to stop
within the box due to the presence of a stationary vehicle.
It does remain the responsibility of the motorist to check
carefully at all times whilst driving their
vehicle, so as to ensure that they do so only as permitted. The
contravention can occur if any part of
the vehicle's wheels are stopped within the box marking. No
actual obstruction need be caused for the
contravention to occur.
Rule 174 of the current edition of the Official Highway Code
refers to box junctions. It explains that
these have criss-cross yellow lines painted on the road and
warns: 'You MUST NOT enter the box
until your exit road or lane is clear. However, you may enter
the box and wait when you want to turn
right, and are only stopped from doing so by oncoming traffic,
or by other vehicles waiting to turn right.
At signalled roundabouts you MUST NOT enter the box unless you
can cross over it completely
without stopping.'
The Appellant raises a number of issues. The Appellant submits
that the box junction is not compliant
as the road joining the main road is a private one; that the
statutory grounds of appeal were not set
out by the Enforcement Authority for recipients of Penalty
Charge Notices making online original
representations to the Enforcement Authority; that the Notice of
Rejection wrongly suggested the he
could not pay the penalty charge and still appeal; and that the
time limits stated on the Penalty
Charge Notice did not state that further time is allowed when
making representations, when they are
posted by the date stated.
A box junction is the yellow criss-cross marking prescribed by
Diagram 1043 at item 25 in Part 6 of
Schedule 9 to the 2016 Regulations. The images produced show
that in this case the marking does
appear to comply. I am satisfied that it is clear to the
motorist that this is a box junction.
Paragraph 11(6) in Part 7 of Schedule 9 to the 2016 Regulations
provides that for the purposes of this
paragraph "box junction" means an area of the carriageway where
the marking has been placed and
which is-
(a) at a junction between two or more roads;
(b) at a gyratory system or roundabout;
(c) along a length of a two-way road (other than at a junction),
the carriageway of which is not greater
than 4.5 metres wide at its narrowest point; or
(d) on the length of road adjacent to the vehicular entrance to
the premises of a fire, police or
ambulance station;
There is no requirement that all the roads be publicly
maintained, although in this case, whilst there
may be a sign indicating private property beyond the junction,
the part of the road adjoining the box is
not so designated.
The Appellant submits that the following statutory grounds were
not set out on the Enforcement
Authority's website. Paragraph 1(4) of the 2003 Act provides
that the grounds for this type of Penalty
Charge Notice are:
(a) that the recipient (i) never was the owner of the vehicle in
question; (ii) had ceased to be its owner
before the date on which the penalty charge was alleged to have
become payable; or (iii) became its
owner after that date;
(b) that there was no (i) contravention of a prescribed order;
or (ii) failure to comply with an indication;
or (iii) contravention of the lorry ban order, under subsection
(5) or (7) of the said section 4 as the
case may be;
(c) that at the time the alleged contravention or failure took
place the person who was in control of the
vehicle was in control of the vehicle without the consent of the
owner;
(d) that the recipient is a vehicle-hire firm and (i) the
vehicle in question was at the material time hired
from that firm under a vehicle hiring agreement; and (ii) the
person hiring it had signed a statement of
liability acknowledging his liability in respect of any penalty
charge notice issued in respect of the
vehicle during the currency of the hiring agreement; or
(e) that the penalty charge exceeded the amount applicable in
the circumstances of the case.
In the Enforcement Authority's list these are respectively items
2, 1, 3, 4 and 5. It is open to the
Enforcement Authority, as here, to consider other grounds beyond
these. The Adjudicator cannot do
so.
The Appellant also submits that the Notice of Rejection wrongly
stated that he did not have the option
to pay and still appeal. There is no right to pay the penalty
charge, at either full or reduced rate, and
still appeal to the Environment and Traffic Adjudicator. If an
Appellant pays the reduced penalty and
then seeks to appeal the Enforcement Authority will likely seek
the balance in the event of any such
appeal sill being registered and then refused. In this case the
Enforcement Authority do state this in
the Notice of Rejection.
The Appellant further submits that the Notice of Rejection
wrongly states that the penalty charge must
be paid within 28 days of the service of the Notice of
Rejection. However, this complies with the
requirement of Paragraph 3 in Schedule 1 to the 2003 Act:
Where any representations are made under paragraph 1 above but
the enforcing authority do not
accept that a ground has been established, the notice served
under sub-paragraph (7) of the said
paragraph 1 (in this Schedule referred to as "the notice of
rejection") must-
(a) state that a charge certificate may be served under
paragraph 5 below unless before the end of
the period of 28 days beginning with the date of service of the
notice of rejection-
(i) the penalty charge is paid; or
(ii)the person on whom the notice is served appeals to a traffic
adjudicator against the penalty charge;
It may be that the Appellant is a little confused as to postal
service and two working days. It is not that
the Appellant has a right to an extra two days to appeal or pay
the penalty charge, but rather the 28
days runs from the date of service of the Notice of Rejection on
the recipient, this is deemed to be two
working days.
Considering carefully all the evidence before me I must find as
a fact that, on this particular occasion,
a contravention did occur and the Penalty Charge Notice was
properly issued.
The penalty charge is £130. The amount of the penalty charge is
set by the Transport, Environment
and Planning Committee of London Councils and approved by the
Mayor of London with the authority
of the Secretary of State. Under Section 4(8)(a)(iv) and 4(10)
of the 2003 Act the enforcement
authority must accept the reduced penalty of £65 if paid within
14 days of the date of the Penalty
Charge Notice. This is different from some other types of
Penalty Charge Notice, where the relevant
date is service. Once this period has expired and, for whatever
reason including appealing to the
Adjudicator and/or making representations to the authority, the
charge remains unpaid then the full
penalty becomes due.
Section 4(18) of the 2003 Act provides that in determining, for
the purposes of any provision of the
Act, whether a penalty charge has been paid before the end of a
particular period, it shall be taken to
be paid when it is received by the authority concerned.
The Enforcement Authority did, in exercise of its discretion,
reoffer the reduced penalty in the Notice
of Rejection. Since there is no legal requirement for the
Enforcement Authority so to do, there can be
no issue as to any time period offered.
Whilst I note all that has been submitted by the Appellant
regarding the circumstances, the
Adjudicator is only able to decide an appeal by making findings
of fact on the basis of the evidence
actually produced by the parties and applying relevant law. The
Court of Appeal has affirmed that the
Adjudicator has no power to consider mitigating circumstances of
any description, including reducing
the amount of the full penalty charge.
Accordingly, this appeal must be refused.
Henry Michael Greenslade
Adjudicator
22nd August 2024
2240331026
MT87744271
#Post#: 40070--------------------------------------------------
Re: 31J Entering and stopping ina box junction when prohibited
DIR By: stamfordman
Date: October 9, 2024, 5:24 pm
---------------------------------------------------------
I wasn't involved in this but there was a good chance one of the
grounds could stick but it would have been best if you'd asked
for representation.
Not all appeals are won. Not paying is your fault and if you'd
posted when the case was lost we would have told you to pay and
also if there were grounds for the refusal to be reviewed.
#Post#: 40097--------------------------------------------------
Re: 31J Entering and stopping ina box junction when prohibited
DIR By: Hippocrates
Date: October 10, 2024, 3:13 am
---------------------------------------------------------
--- Quote from: stamfordman link ---
>
> I wasn't involved in this but there was a good chance one of
the grounds could stick but it would have been best if you'd
asked for representation.
>
> Not all appeals are won. Not paying is your fault and if you'd
posted when the case was lost we would have told you to pay and
also if there were grounds for the refusal to be reviewed.
>
--- End Quote ---
I absolutely agree with stamfordman.
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