DIR Return Create A Forum - Home
---------------------------------------------------------
FreeTrafficLegalAdvice
HTML https://ftla.createaforum.com
---------------------------------------------------------
*****************************************************
DIR Return to: The Flame Pit
*****************************************************
#Post#: 82142--------------------------------------------------
Re: Merton's PCNs for Contravening Pedestrian and Cycle Zone Sig
ns to Diagram 618.3C
By: Bustagate Date: July 22, 2025, 9:49 am
---------------------------------------------------------
I've taken another look at s.6 LLATfL Act 2003 and now think I
answered your initial question wrongly. Sorry!
While Merton's signs are not "scheduled section 36 traffic
signs", that merely means that someone passing such a sign does
not engage subsection (5)(b):
[quote]
fails to comply with an indication given by a scheduled section
36 traffic sign.[/quote]
but subsection (5)(a) is still engaged:
[quote]
acts in contravention of a prescribed order;
[/quote]
Subsection (6) ensures that a single action does not give rise
to the issuing of two PCNs. The result is:
[indent]IF someone fails to comply with a scheduled section 36
traffic sign
[indent]THEN a penalty charge is payable under subsection
(5)(b)[/indent]
ELSE IF someone acts in contravention of a prescribed order
[indent]THEN a penalty charge is payable under subsection
(5)(a)[/indent]
END IF[/indent]
The Parliamentary draftsmen are better at their job than Merton
are at theirs. Merton's correct answer to my FoI would have
been:
[indent]We haven't issued any PCNs for contravening signs to
diagram 618.3C because we haven't got any signs to diagram
618.3C.[/indent]
To the supplementary question which I didn't ask, the answer
would have been:
[indent]We've issued lots of PCNs for contravening TMOs under
our School Streets programme[/indent]
I conclude that challenges to Merton's PCNs have to be about the
adequacy of the signage, in particular that which people see
before they're committed to entering the Pedestrian and cycle
zone.
Back to Rivercourt Road, Camrose Avenue and the like: there,
although the TMO is legally valid (because it wasn't challenged
within the first six weeks), the restrictions which the TMO
imposes may not be what the Council thinks they are.
#Post#: 82189--------------------------------------------------
Re: Merton's PCNs for Contravening Pedestrian and Cycle Zone Sig
ns to Diagram 618.3C
By: John_S Date: July 22, 2025, 1:33 pm
---------------------------------------------------------
I’d be interested in the opinions of others on this. When powers
were given to local Councils to enforce moving traffic
contraventions it was widely publicised that they were limited
to certain types of traffic sign - hence Schedule 3.
LLATFLA section 4 goes on to define (re sub-section (5)(a)):
“prescribed order” as: “an order under section 6 or 9 of the Act
of 1984 which makes provision for a relevant traffic control”;
then “relevant traffic control” as “any requirement, restriction
or prohibition (other than a requirement, restriction or
prohibition under the lorry ban order) which is or may be
conveyed by a scheduled traffic sign”;
then “scheduled traffic sign” as “a traffic sign of a type
described in Schedule 3 to this Act”.
Put these three definitions together and IMO you get: (5)(a)
requires a scheduled traffic sign to be in place. I believe the
underlying intention of the LLATFLA draftsman was to limit PCNs
to certain traffic signs. This is further supported by the
limited contravention codes that have been assigned for use on
PCNs.
EXCEPT... I can’t be sure what’s meant by the words “or may be”
in the definition of “relevant traffic control” - hence my
original question 12 months ago.
An alternative way of looking at it is that Merton School
Streets TMOs are too complex to be conveyed by scheduled traffic
signs because the TMO exemptions are not permitted variants of
such signs. So they need special authorisation signs. So their
TMOs fall outside the definition of “relevant traffic control”.
It then follows that PCNs cannot be issued.
Hope this all makes sense.
#Post#: 82204--------------------------------------------------
Re: Merton's PCNs for Contravening Pedestrian and Cycle Zone Sig
ns to Diagram 618.3C
By: ivanleo Date: July 22, 2025, 2:28 pm
---------------------------------------------------------
Strategy of last resort:
HTML https://www.ftla.uk/civil-penalty-charge-notices-(councils-tfl-and-so-on)/ealing-cumberland-road-w7-code-53j-failing-to-comply-with-a-restriction-on-vehic/msg56444/#msg56444
Cases decided this year:
Nashrin Master v London Borough of Hackney (2240537076, 19
February 2025)
HTML https://drive.google.com/file/d/1hu-p41Pvxehyuky0GpFJ7bt6_YdR-tuy/view
Guaranteed Cleaning Ltd v London Borough of Lewisham
(224056645A, 8 March 2025)
HTML https://drive.google.com/file/d/1C-1hJTsZNNPIV4N1R9VSPcsagIjHS_b8/view
Patrick Tuohy v London Borough of Haringey (2240550573, 18 March
2025)
HTML https://drive.google.com/file/d/1XVZGa7keCakZ7K7uJ41_GiqLwClNVR3K/view
Ivan Bachkov v London Borough of Newham (2250079444, 20 June
2025)
HTML https://drive.google.com/file/d/1iBy4Gj1CzFEza6nfV9y8mLwolvbZ-C5a/view
Fardowsa Ahmed v London Borough of Waltham Forest (2250119673,
18 July 2025)
HTML https://drive.google.com/file/d/1YlT08xehrX48rHhVg0OjTDKf9lTVBo3g/view
One variation on the same theme is to send a video on a physical
CD by post, as councils seems to ignore them:
Stanmore Quality Services Ltd v London Borough of Islington
(2250176349, 14 July 2025)
HTML https://drive.google.com/file/d/1sqxZ124P0gtfBr-_3PQ4r1QwV4zRrPjF/view
Commercial Plant Services Ltd v London Borough of Islington
(2250222967, 21 July 2025)
HTML https://drive.google.com/file/d/1aNhToW6R3O-D_udBdpVi6AMqeokQUVIW/view
I suspect they've farmed out postal receipts to a third-party
scanning centre that just throws CDs and other media in the bin.
As the name suggests, the strategy of last resort can win
virtually any case if executed correctly, regardless of the
underlying merits of the case. The only exception I've seen are
Tower Hamlets and sometimes Brent.
Of course in any case where representations have been made
already, it's too late.
#Post#: 82226--------------------------------------------------
Re: Merton's PCNs for Contravening Pedestrian and Cycle Zone Sig
ns to Diagram 618.3C
By: Bustagate Date: July 22, 2025, 4:25 pm
---------------------------------------------------------
"may be" = "is capable of being"
The fact that special authorisation was sought and obtained is a
very strong indicator of a restriction which could not be
conveyed by a scheduled traffic sign.
Does anyone know why Merton sought special authorisation in
2022? The scheme had been in place since 2020, initially under
an experimental traffic order, with signs bearing the legend
"Except for authorised vehicles"; see Merton School Streets
newsletter of 18 September 2020
HTML https://www.merton.gov.uk/system/files?file=hillcross20-monkleigh20-school20street20newsletter.pdf
#Post#: 82237--------------------------------------------------
Re: Merton's PCNs for Contravening Pedestrian and Cycle Zone Sig
ns to Diagram 618.3C
By: Bustagate Date: July 22, 2025, 5:33 pm
---------------------------------------------------------
One place where "may be" is regularly used in legislation
involving traffic signs is Except plates for No Entry signs,
e.g. Schedule 3 to LLATfL Act 2003 (my capitalisation):
[quote]
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.
[/quote]
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).
From the early days of bus restrictions (before TSRGD 1975),
authorities have used diagram 616 + Except plates to implement
bus gates. As they weren't signed as bus lanes, bus gates
couldn't use the thick white line (diagram 1049) to separate the
bus gate from other traffic. Instead, authorities separated them
using traffic islands. To stop bus gates being used by other
traffic, authorities put rising barriers across them, hence "bus
gate". Here's what may have been the last of them (but the bus
lanes approaching Hammersmith Bridge had rising barriers until
2019 to ensure at most two buses on the bridge at any time):
[attachimg=1]
From the late 1980s, the predecessor of DfT developed the blue
roundel signs and started encouraging authorities to apply for
special permission to use them. They became freely available in
TSRGD 1994 as diagram 953 etc. DfT tried to get authorities to
switch to the new signs, but some insisted on sticking with the
old signage.
When DfT came to write legislation for civil enforcement, they
included diagram 616 as a sign but required it to be accompanied
by an Except plate which defined a restriction which could be
imposed using one of the other signs which was the subject of
civil enforcement. I surmise that the use of "or may be" in
Schedule 3 LLATfL Act 2003 was a "catch-all" provision to cover
authorities which used weird and wonderful signage which wasn't
in Schedule 3 where they could have signed the restriction using
signage which was in Schedule 3.
That's my perception of where "may be" came from in legislation
for civil enforcement. I agree with @John_S that those writing
the legislation had it in mind that civil enforcement of moving
traffic offences was only to apply to a subset of possible
signage as set out in a list of diagram numbers.
P.S Someone might like to check whether the City are issuing
PCNs at the bus gate shown above (junction of Byward Street and
Great Tower Street). It now has a No Entry sign with "Except
cycles and authorised buses". That's not a restriction which can
be signed using any of the blue roundels. Presumably the City
authorises (for a fee) certain bus tours to use it; if they just
wanted to restrict it to scheduled bus routes, they'd specify
"local buses", for which they could use diagram 953 with "local"
superimposed over the bus pictogram.
P.P.S. Is there any requirement with PCNs alleging contravention
of a traffic order to specify the title of the traffic order?
With my son's PCN, Harrow didn't specify it on the PCN but
included a copy of the traffic order in the papers submitted for
the appeal. Under section 7.2(3) of the Criminal Procedure Rules
[quote]
(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.
[/quote]
[attachment deleted by admin]
#Post#: 82461--------------------------------------------------
Re: Merton's PCNs for Contravening Pedestrian and Cycle Zone Sig
ns to Diagram 618.3C
By: John_S Date: July 24, 2025, 3:34 am
---------------------------------------------------------
[member=3617]Bustagate[/member] I’ve answered as many of your
general questions as I can:
[quote]So they've removed all the "School term time"
plates?[/quote]
I believe so. All the sites I’ve passed no longer have them.
[quote]What about their yellow advisory signs which also refer
to school term time?[/quote]
They’re all still in place. They are non-compliant and
inadequate in any case, but not necessarily required at every
site.
[quote]Does this mean that they now issue PCNs during the school
holidays?
[/quote]Not to my knowledge, but the TMOs I've seen make no
mention of holidays to they could do if they wish.
[quote]If not, how do they square that with the administrative
law doctrine of not taking account of irrelevant
considerations?[/quote]
IMO there’s no legal requirement/duty for any council to
actually issue PCNs.
[quote]Any idea when they started issuing PCNs for these signs,
i.e. was it before 4 October 2022?
[/quote]Well before January 2022 for several sites in Merton,
but don’t know the exact dates.
#Post#: 83050--------------------------------------------------
Re: Merton's PCNs for Contravening Pedestrian and Cycle Zone Sig
ns to Diagram 618.3C
By: Hippocrates Date: July 28, 2025, 4:12 am
---------------------------------------------------------
I drove on the A298 the other day and still they have yellow
warning signs with school term time on them.
#Post#: 86947--------------------------------------------------
Re: Merton's PCNs for Contravening Pedestrian and Cycle Zone Sig
ns to Diagram 618.3C
By: Bustagate Date: August 23, 2025, 4:29 pm
---------------------------------------------------------
[member=1715]John_S[/member] I've now had a reply from Merton to
my FoI
HTML https://www.whatdotheyknow.com/request/pcns_issued_for_signs_not_in_sch?unfold=1#incoming-3125998.<br
/>I don't consider it addresses the issues and have requested an
internal review
HTML https://www.whatdotheyknow.com/request/pcns_issued_for_signs_not_in_sch#outgoing-1922233.<br
/>
While I consider that Merton deserve heat on their signage for
the school streets, I'm not convinced that the courts would
accept that the addition of an "Except authorised vehicles"
plate (even with the erroneous "for") renders the pedestrian and
cycle zone invalid. De minimis comes to mind.
On the other hand, I do think that there's a strong line of
argument to do with the Council's failure to apply its TMO
consistently. While Merton's website (and Council papers) talk
about applying the scheme only during term time, the TMOs don't,
e.g. the TMO for Hollymount School
HTML https://www.merton.gov.uk/system/files/TMO%202022-21%20The%20Merton%20%28Pedestrian%20and%20Cycle%20Zone%29%20%28Hollymount%20Primary%20School%29%20Traffic%20Order%202022.pdf.<br
/>This TMO declares:
[quote]
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
[/quote]
While you may consider that Merton are under no obligation to
issue PCNs during school holidays, they are obliged to
administer the law fairly. While the intention of the scheme may
well have been that it should only apply during term time, that
isn't what they have actually legislated. The TMO applies during
the specified hours Monday to Friday throughout the year.
If you get a PCN for entering a school zone one Monday and
another person doesn't who enters the same school zone at the
same time a week later (perhaps on a Bank Holiday), you are
entitled to feel aggrieved. Why have Merton issued you with a
PCN when they haven't issued a PCN to someone who did the same
thing a week later? Merton may say "Ah, but the school wasn't in
session". So what? Merton have legislated to prohibit entry at
that time on a Monday regardless of whether the school is in
session or not.
This failure to be even-handed in administering justice violates
the fundamental doctrine on which administrative law is based:
the Rule of Reason. This dates from the sixteenth century and
states that discretionary powers must be exercised for sound
reasons; if they are not, the courts can intervene and overrule
the decision taken.
The modern version of this is the concept of Wednesbury
unreasonableness. In the words of Lord Greene MR
[quote]
... 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.
[/quote]
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.
[I have been very conscious of this because shortly after I
joined the Department of Education and Science, it was dealt a
body-blow by the House of Lords (now the Supreme Court) in the
Tameside case. This found that the Secretary of State had acted
unreasonably in not allowing Tameside MDC at short notice after
an election to change its plans to go comprehensive.]
While the costs of judicial review are large, it is possible to
make a collateral challenge to the reasonableness of an
administrative action in the course of other proceedings. Thus a
PCN can be challenged on the grounds that the local authority is
acting Wednesbury unreasonably in issuing the PCN to the
appellant and not to other people who have contravened the TMO
in a like manner.
Such a challenge would fail if the council used folding signs
which were covered up during school holidays (Cornwall) or signs
which lit up when the pedestrian and cycle zone was in force and
were blank at other times. In those cases, the council could
point to the absence of visible signage as a relevant
consideration in its decision not to issue a PCN notwithstanding
that the TMO specified that the zone was in force.
Note that the test of unreasonableness is not "the man on the
Clapham omnibus" but Wednesbury. The man on the Clapham omnibus
might well say that it's reasonable only to issue PCNs when the
school is in session. But if the TMO doesn't say anything about
the school term or the school being in session, those are
irrelevant considerations, so the decision is likely to be
Wednesbury unreasonable.
If a collateral challenge is made to a PCN on the grounds of
Wednesbury unreasonableness, the adjudicator will be obliged to
consider it. This is likely to prove a very hard chestnut:
adjudicators can hardly dismiss it out of hand, but to concede
it is likely to lead to judicial review proceedings by the local
authority against the traffic penalty tribunal (so zero
financial risk to the appellant). The easy escape (for both the
local authority and the tribunal) is to allow the appeal on
other grounds which have been included in the appeal. So much
the better if these are ones which involve findings of fact by
the adjudicator, as those are final.
#Post#: 86972--------------------------------------------------
Re: Merton's PCNs for Contravening Pedestrian and Cycle Zone Sig
ns to Diagram 618.3C
By: Hippocrates Date: August 24, 2025, 5:11 am
---------------------------------------------------------
Most adjudicators entertain a collateral challenge.
#Post#: 86994--------------------------------------------------
Re: Merton's PCNs for Contravening Pedestrian and Cycle Zone Sig
ns to Diagram 618.3C
By: Bustagate Date: August 24, 2025, 9:21 am
---------------------------------------------------------
[member=24]Hippocrates[/member]: Any views on the chances of
success with this?
Merton's web page about school safety zones
HTML https://www.merton.gov.uk/streets-parking-transport/school-safety-zones<br
/>states:
[quote]
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.
[/quote]
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.
*****************************************************
DIR Next Page