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#Post#: 19302--------------------------------------------------
52M Failing to comply with a prohibition..., 52M Failing to
comply with a prohibition...Waltham Forest
DIR By: philou
Date: April 8, 2024, 10:05 am
---------------------------------------------------------
Dear All,
Had posted the above-referenced on behalf of a relative of mine
on the other forum and was wondering if anyone here can share
their thoughts as well please.
Summary of it is that on the night of the alleged contravention,
the person's visibility was impaired due to heavy rain. He also
thought:
1) the planters were too wide apart (which didn't seemingly act
as a prohibition to motor vehicles,
2) the "closed road" signage was referrig to the location
further ahead.
The link (
HTML http://tinyurl.com/Nash52M)
is the PCN's and below
ones are some pics of the location:
HTML https://tinyurl.com/yc34drhe
HTML https://tinyurl.com/4bdxdnpt
HTML https://tinyurl.com/r262jfwu
The below was the representation sent:
Dear Waltham Forest
Ref: PCN VRM
I make these representations against the said PCN as follows:
1. The signage is confusing as the ROAD CLOSED sign is
positioned before the junction and the road ahead appeared to be
free to enter. Furthermore, the restriction signs are also
placed before the road ahead. Therefore, this is very unclear.
2. I refer you to Case No 2220655455
ETA Register of Appeals
Register kept under Regulation 20 of the Road Traffic (Parking
Adjudicators) (London) Regulations 1993, as amended and
Regulation 17 of the Civil Enforcement of Road Traffic
Contraventions (Representations and Appeals) (England)
Regulations 2022.
Case Details
Case reference 2220655455
Appellant Bysshe Wallace
Authority London Borough of Waltham Forest
VRM PK65WZA
PCN Details
PCN FR57211309
Contravention date 17 Jul 2022
Contravention time 14:12:00
Contravention location Forest Road / Russell Road
Penalty amount GBP 130.00
Contravention Entering and stopping in a box junction
Referral date
Decision Date 27 Oct 2022
Adjudicator Henry Michael Greenslade
Appeal decision Appeal allowed
Direction cancel the Penalty Charge Notice.
Reasons This decision has been amended under Regulation 15 of
the Road Traffic (Parking Adjudicators) (London) Regulations
1993.
At this scheduled personal hearing the Appellant was represented
in person by Mr Morgan and her husband, Mr Emamally, also
attended.
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 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 Appellant’s case is that she was trying to steer clear of a
scooter rider who was cruising around on the main carriageway
and weaving in and out of the traffic. The Appellant submits
that she was deeply concerned and anxious that there could be an
accident and thinking it would minimise the chance of that, she
pulled up behind the car which was already stationary at the
lights.
The closed circuit television (cctv) images show that the
Appellant’s vehicle did enter this box junction marking when the
vehicle ahead was still in it and then had to stop within the
box due to the presence of a stationary vehicle. The images do
also show a scooter but it is some way behind the Appellant’s
vehicle even after it had stopped in the box.
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.’
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.
Mr Morgan also submits that the Enforcement Authority failed to
address properly the original representations to the Enforcement
Authority and that the wording of the Penalty Charge Notice is
non-compliant.
As to the latter, Section 4(8) of the 2003 Act provides that:
A penalty charge notice under this section must-
(a) state-
(i) the grounds on which the council or, as the case may be,
Transport for London believe that the penalty charge is payable
with respect to the vehicle;
(ii) the amount of the penalty charge which is payable;
(iii) that the penalty charge must be paid before the end of the
period of 28 days beginning with the date of the notice;
(iv) that if the penalty charge is paid before the end of the
period of 14 days beginning with the date of the notice, the
amount of the penalty charge will be reduced by the specified
proportion;
(v) that, if the penalty charge is not paid before the end of
the 28 day period, an increased charge may be payable;
(vi) the amount of the increased charge;
(vii) the address to which payment of the penalty charge must be
sent; and
(viii) that the person on whom the notice is served may be
entitled to make representations under paragraph 1 of Schedule 1
to this Act; and
(b) specify the form in which any such representations are to be
made.
Paragraph 3 of the Schedule to Act provides:
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; and
(b) describe in general terms the form and manner in which such
an appeal must be made,
and may contain such other information as the enforcing
authority consider appropriate.
Regulation 4(2)(a) of the Road Traffic (Parking Adjudicators)
(London) Regulations 1993 provides that the local authority
shall produce a copy of the relevant Penalty Charge Notice.
Page 3 of the Penalty Charge Notice states:
"If you fail to pay the Penalty Charge or make representations
before the end of a period of 28 days beginning with the date of
service of this notice an increased charge of £195 may be
payable. We may send you a Charge Certificate seeking payment of
this increased amount. At this stage it would be to [sic] late
to make representations".
There is a clear, and incorrect, confluence of the two
provisions. The wording on the Penalty Charge Notice produced to
me does not comply with the legal requirements.
It might be said that the Appellant is not prejudiced as, in
effect, the time limit for initial payment of the penalty charge
is increased
However, the Appellant’s representative has referred to the
decision in R (Barnet) v The Parking Adjudicator (2006) EWHC
2357 (Admin).
Although that case involved a Penalty Charge Notice issued under
different statutory provisions, it makes clear that the fact
that an appellant may not have been prejudiced is not a "cure"
to the substantive defect. The defect renders the penalty
unenforceable. make clear the importance of complying with the
requirements of the legislation. Mr Justice Jackson said in that
case "Prejudice is irrelevant and does not have to be
established. The 1991 Act created a scheme for the civil
enforcement of parking control. Under this scheme motorists
become liable to pay financial penalties if certain specified
statutory conditions are met. If the statutory conditions are
not met then the financial liability does not arise."
I cannot find that there is any serious possibility of real
prejudice here but the wording is not correct and, accordingly,
for the reasons set out this appeal must be allowed.
It follows that no other issue need be determined.
In light of the above, I request that the PCN be cancelled.
Yours faithfully
Name (Registered keeper)
Address
Followed by NOR:
HTML https://tinyurl.com/3he8ewtw
Worth noting they've not addressed the point mentioned in the
Representation about position of signage etc.
Your thoughts are appreciated.
Many thanks
#Post#: 19351--------------------------------------------------
Re: 52M Failing to comply with a prohibition..., 52M Failing to
comply with a prohibition...Waltham Forest
DIR By: Hippocrates
Date: April 8, 2024, 4:22 pm
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There were a few illustrious observers in attendance at that
hearing! In this particular case, I would say let's go for it my
friend!
#Post#: 19360--------------------------------------------------
Re: 52M Failing to comply with a prohibition..., 52M Failing to
comply with a prohibition...Waltham Forest
DIR By: ivanleo
Date: April 8, 2024, 5:22 pm
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The TRO is The Waltham Forest (Prescribed Routes) (Winns Avenue
Pennant Terrace region) (No.1) Experimental Traffic Order 2023
HTML https://drive.google.com/file/d/1GUvqn8W6Fhz-HNdysI7JQFRvPcJKQk6u/view.
Sorry to say it but the signs look clear as day, even at night:
HTML https://www.youtube.com/watch?v=kF6RUisguFg
The case you've cited is negated by paragraph 5 of Schedule 1 to
the London Local Authorities and Transport for London Act 2003
HTML https://www.legislation.gov.uk/ukla/2003/3/schedule/1/paragraph/5/enacted,<br
/>which provides that:
[indent]
5(1) Where a penalty charge notice is served on any person and
the penalty charge to which it relates is not paid before the
end of the relevant period, the enforcing authority may serve on
that person a statement (in this paragraph referred to as a
“charge certificate”) to the effect that the penalty charge in
question is increased by 50 per cent.
(2) The relevant period, in relation to a penalty charge notice
is the period of 28 days beginning—
[indent]
(a)where no representations are made under paragraph 1 above,
with the date on which the penalty charge notice is served;
[/indent]
[/indent]
Maybe Hippocrates can come up with something else?
One argument I can see is that the traffic order says:
[indent]
2.7 No person shall cause or permit any motor vehicle to enter
or proceed in Winns Avenue, E17, between the eastern kerb line
of South Countess Road eastwards for 16.5 metres.
[/indent]
However the signs are not placed at that distance:
HTML https://i.imgur.com/BnFo2FC.png
This has won for instance in Michael Dempsey v London Borough of
Enfield (2230348292, 26 August 2023)
HTML https://drive.google.com/file/d/1gm5wYAaOUAoy98tzestBeUbQZq4M-dka/view,<br
/>as Mr Teper accepted the regulations require that "When the
sign
is placed to indicate the point at which a restriction,
requirement or prohibition begins or ends, it must be placed as
near as practicable to that point."
The counter argument is: would it have made any difference if
the signs were placed where they should have been?
One that could go either way depending on the adjudicator.
#Post#: 19761--------------------------------------------------
Re: 52M Failing to comply with a prohibition..., 52M Failing to
comply with a prohibition...Waltham Forest
DIR By: philou
Date: April 15, 2024, 5:04 pm
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Hi CP/Hippo,
Thank you both very much for your input. I relayed the
observations/thoughts to the OP who, I believe however, isn't
confident enough to risk it at adjudication stage, unlike some
of us. :(
Nevertheless, many thanks again for the pointers! :)
Cheers
Philou
#Post#: 19804--------------------------------------------------
Re: 52M Failing to comply with a prohibition..., 52M Failing to
comply with a prohibition...Waltham Forest
DIR By: Hippocrates
Date: April 16, 2024, 3:38 pm
---------------------------------------------------------
Now that's a conflation indeed! No worries. His money/his
decision. We respect.
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