parking in a suspended bay

janey254

Two weeks ago I made a quick visit into town with my baby grandson. I parked in the first bay in our oneway high street, went to the back of the car to put up the pushchair, put my grandson in, and then walked away from the car.On returning 20 mins later I had received a PCN for parking in a restricted bay. It was only after looking around me and walking further down the street that I noticed that the bay was restricted for the day due to roadworks.there was a barrier up further down the street but no road workers working on that day !!
I checked my local council web site and they had put up a notice saying that restricted bays would be in the area for roadworks and it stated that the restriction would start at LP (lamp post) 5 however the sign was put up further down the steet. On entering the oneway street there was nothing in view to state this and also there was a car parked in front of me restricting the sign so it couldnt be viewed on entering the street. I wrote to council stating that the sign wasn't evident on entering the street and they have written back saying that the notice stands and they state that the sign was placed directly beneath the parking restriction sign for the bay in which my vehicle was parked, however this is not the case and can be shown in their own photograph and that of photos I took.
I am so cross but not sure if I have grounds to take this to appeal.
Any help would be much appreciated ...
Thank you.

TheBogsDollocks

Can you upload photos of the signage and can you confirm the code used on the PCN?

janey254

The PCN code is 21 which I beleive is the correct one.
The photos I took on the day are on my daughters phone and she is out at the moment, however I went the next day and took photos from the beginning of the restriction. I will post these now and post the rest tomorrow.I just have to check how to upload the photos ...
thank you.

peter_the_piper

Host on tinypic. Upload them and take the url given and paste it to a post. Remove the http:// bit.

janey254

i42.tinypic.com/dzb480.jpg[/IMG]
This is the photo taken as I enter the high street. I parked in the first bay where the yellow car is parked. The suspended sign is not visible.

janey254

I am not sure if I have uploaded the pics correctly. If not then please e mail me and I will send them on.
thank you

Browntoa

http://i42.tinypic.com/dzb480.jpg

peter_the_piper

TheBogsDollocks wrote: »

Can you upload photos of the signage?

Thanks for the road pics, the advice still stands along with both sides of the pcn without identifying details.

janey254

I am trying to upload all the photos but apparently as a newby I am not allowed to !
Thanks.
I really do need this advice so any help would be gratefully received.

janey254

Sorry, this is really frustrating .... You are trying to help me but the site says I cannot upload pictures for you to view. Any Ideas ??

TheBogsDollocks

If the suspension sign was similar in form to the one linked below then use the template appeal letter below.

http://forums.pepipoo.com/lofiversion/index.php/t45326.html

To whom it may concern

I wish to appeal against the penalty charge served upon me on the grounds that the council has failed in their statutory duty to sign the temporarily suspended bay in accordance with the law. The temporary suspension traffic sign used fails to comply with s.64 of the Road Traffic Regulation Act 1984 as it is neither prescribed by regulations nor authorised by the Secretary of State. This fact is made clear by paragraph 7.53 contained within the Traffic Signs Manual Chapter 3;


7.53 Where it is required to suspend a parking or
loading bay, e.g. to enable works to be carried out,
a temporary sign should be provided. These are not
prescribed by the Regulations, other than for parking
meters (see para 6.30), and guidance should
therefore be sought from the Department


The council operate traffic enforcement under the provisions of the Traffic Management Act 2004. This act under section 92 advises;

“traffic sign” has the meaning given by section 64 of the Road Traffic Regulation Act 1984.

Section 64(1) of the Road Traffic Regulation Act 1984 defines a traffic sign as either being.

(a) specified by regulations made by the Ministers acting jointly, or
(b)authorised by the Secretary of State,
Section 64(2) of the RTRA 1984 adds further that;
(2) Traffic signs shall be of the size, colour and type prescribed by regulations made as mentioned in subsection (1)(a) above except where the Secretary of State authorises the erection or retention of a sign of another character.

The regulations referred to in section 64(1)(a) of the RTRA 1984 are known as the Traffic Signs Regulations and General Directives 2002. DfT circular 02/2003 informs about their purpose;

The TSRGD 2002 prescribe the designs and conditions of use for traffic signs to be
lawfully placed on or near roads in England, Scotland and Wales.

Regulation 11 within the TSRGD 2002 reiterates this circular and section 64(2) of the RTRA 1984.

11.—(1) Subject to the provisions of these Regulations, a sign for conveying information or a warning, requirement, restriction, prohibition or speed limit of the description specified under a diagram in Schedules 1 to 7, Part II of Schedule 10 and Schedule 12 to traffic on roads shall be of the size, colour and type shown in the diagram.

Further to the TSRGD 2002 the DfT has compiled and published numerous manuals known as the “Traffic Signs Manuals” to provide deliberate and extensive detail and information on how Local Authorities are to apply and interpret the plethora of regulations and directions given within the TSRGD 2002. These manuals contain no confusion as to how the DfT expect Local Authorities to interpret the law on traffic signs.

The TSM Chapter 1 advises;

1.15 Authorities may only use signs–
including carriageway markings–of a
size, colour and type prescribed or
specially authorised by the Secretary of
State, The prescribed signs are included
in The Traffic Signs Regulations and
General Directions 2002.

1.18 The use on Public highways of
non-prescribed signs which have not
been authorised by, or on behalf of,
the Secretary of State, is illegal and
Authorities who so use unauthorised
signs act beyond their powers.
Additionally, an unauthorised sign in
the highway is an obstruction.

The TSM Chapter 3 advises;

2.1 All traffic signs placed on a highway or on a
road to which the public has access (right of passage
in Scotland), as defined in section 142 of the Road
Traffic Regulation Act 1984 and amended by the
New Roads and Street Works Act 1991, must be
either prescribed by Regulations or authorised by the
Secretary of State for Transport……. and that no non-prescribed
sign is used unless it has been formally authorised
in writing. Failure to do so may leave an authority
open to litigation, or make a traffic regulation order
unenforceable.

The TSM Chapter 5 advises;

2.1 All road markings placed on a highway or road
to which the public have access must be either
prescribed by Regulations or authorised by the
Secretary of State for Transport.

2.5 Care should be taken to ensure that markings
are used only in the manner prescribed in the
Regulations, and that no non-prescribed marking is
used unless it has been authorised in writing. Failure
to do so may leave an authority open to litigation, or
make a traffic regulation order unenforceable.

In addition the DfT has compiled and published more than 14 series of extensive detailed works known as “Working Drawings” to assist Local Authorities in ensuring that they get the design of traffic signs correct. It is nonsensical that the DfT would go to such extreme lengths of detail and precision if they believed legislators intended Local Authorities to be allowed freedom of action or any degree of autonomy in traffic sign design.

Although both the RTRA 1984 and the TSRGD 2002 were enacted prior to the Traffic Management Act 2004 they are both still active and form the legal foundation for traffic enforcement under the TMA 2004. Section 87 of the TMA 2004 made provision for the Secretary of State to issue statutory guidance to Local Authorities in which they must have regard to when implementing and administering their traffic enforcement. It is clear from the extracts below that the Secretary of State expects Local Authorities to use traffic signs that comply with the law.

12. Enforcement authorities should aim to increase compliance with parking
restrictions through clear, well designed, legal and enforced parking controls.

17. all Traffic Regulation Orders (TROs), traffic signs and road markings are in
compliance with legal requirements

25. Unclear restrictions, or restrictions that do not comply with
regulations or with the Secretary of State’s Guidance, will confuse people and
ultimately undermine the operation and enforcement of the scheme overall.

33. Once a solid foundation of policies, legitimate TROs, and clear and lawful
signs and lines are in place, the success of CPE will depend on the dedication
and quality of the staff that deliver it.

38. CEO duties will also include related activities such as the following:
checking and reporting defective traffic signs and road markings.

In addition to the Secretary of State’s statutory guidance the DfT published further guidance for the benefit of Local Authorities. This publication is known as the “Operational Guidance to Local Authorities” and this gives further clarification in regard to traffic signs.

Annex E1: All local authorities are responsible for the accuracy and condition of the traffic
signs and road markings that identify parking restrictions in their area. The traffic
signs and road markings must conform strictly to the relevant regulations
(currently the Traffic Signs Regulations and General Directions 2002 – TSRGD –
and subsequent amendments) or have special authorisation from DfT. They
should also conform to the guidance set out in Chapters 3 and 5 of the Traffic
Signs Manual.

8.35 Authorities should not issue PCNs when traffic signs or road markings are
incorrect, missing or not in accordance with the TRO. These circumstances
may make the Order unenforceable. If a representation against a PCN shows
that a traffic sign or road marking was defective, the authority should accept
the representation because the adjudicator is likely to uphold any appeal.
An enforcement authority may be acting unlawfully and may damage its
reputation if it continues to issue PCNs that it knows to be unenforceable.

13.6 The Secretary of State will not sign an Order
until a senior official of the authority has confirmed in writing that all existing
and new TROs, traffic signs and road markings in the proposed CEA:
are in line with Government regulations and guidance in relevant chapters of
the Traffic Signs Manual or have special authorisation from DfT;

Considering all the above, what it is evidently clear, ever since the introduction of the RTRA 1984 up to the publication in 2008 of the DfT “Operational Guidance to Local Authorities”, is that there has been consistent and explicit direction by both the legal profession and Government, as to what is considered to be a lawful traffic sign. The courts have helped confirm this direction, such as in Davies v Heatley[1971] RTR45 where it was determined that the fact that a traffic sign may be clear does not make it legally correct. This finding of fact has been considered correct by numerous adjudicators but most notably in the key cases between Burnett v Buckinghamhire CC (PAS case HIW0003), Mr J Letts v London Borough of Lambeth (PA 1980151656) and Mr Keivan Jalali Bijari v Bolton Metropolitan Council (case no BO05375E).

The legislators did accept that a degree of flexibility would be required by Local Authorities and this is why the law not only prescribes numerous variations of traffic signs but permits a Local Authority to approach the Secretary of State to seek authorisation to use a non prescribed traffic sign. If a Local Authority chooses not to follow the scope of the law then they must suffer the consequences without complaint rather than act ultra vires by attempting to enforce an unlawfully signed traffic restriction.

If the law intended only that a traffic sign must not mislead a motorist then the law would simply have stated as such and neither the legislators nor Government would have gone to such extreme and costly measures in drafting and publishing volumes of legislation and guidance to assist Local Authorities in regard to the specific design of traffic signs.

If the Council should continue to ignore the overwhelming evidence that is in my favour and attempt to assert that, although the traffic sign fails to comply with the law, it is adequate to convey the restriction and that its non compliance with the law can be regarded as “de minimis” then I must strongly disagree. I have illustrated above that both the law and Government has gone to great trouble and effort to ensure that throughout the country motorists can be confident of finding identical traffic signs to the restrictions in force. This is not a case, where, for example, there is a very minor degree of wear to the lines or where one of the white lines is a millimetre or two out. The fact of the matter is that the council has simply used non prescribed signage without authorisation and it seems to me to be inappropriate to employ the “de minimis” principle to paper over the error. I certainly do not consider the amount of the penalty charge to be “de minimis” when compared to my disposable income.

If the Council do argue a case of “de minimis” then I too should be allowed, in the interest of justice and fairness, the same degree of flexibility and leniency when interpreting the traffic order bylaw. We are repeatedly informed that the purpose of traffic restrictions is to maintain traffic flow and to encourage road safety for all users of the public highway. My vehicle was not parked in such a manner that it interrupted the traffic flow nor did it endanger the safety of any person upon the public highway. Therefore, it is not unreasonable to apply the principle of “de minimis” to the alleged contravention just as equally as one might attempt to apply it in defence of the unlawful traffic sign.

The DfT in its Operational Guidance to Local Authorities is quite clear. Annex E2 gives clear and precise instruction;

PCNs may not be valid if they are issued where traffic signs and road markings
are incorrect or in poor condition. Representations demonstrating this should be
accepted.

I have demonstrated that the temporary suspension sign is incorrect and therefore I require the council to acknowledge their signing error and that this penalty charge be cancelled forthwith.


Should you act unreasonably and refuse to cancel the PCN then I must also bring to your attention the important fact that PCN fails to comply with regulation 3(2)(b) contained within Statutory Instrument 2007/3482 and it is therefore my belief that the PCN is not lawful.

3(2) A penalty charge notice served under regulation 9 of the General Regulations must, in addition to the matters required to be included in it under paragraph 1 of the Schedule to the General Regulations, include the following information—
(a) that a person on whom a notice to owner is served will be entitled to make representations to the enforcement authority against the penalty charge and may appeal to an adjudicator if those representations are rejected; and
(b) that, if representations against the penalty charge are received at such address as may be specified for the purpose before a notice to owner is served—
(i) those representations will be considered;

Although the PCN does say that representations will be considered, it fails to make the recipient aware of the period of time they are lawfully entitled to in which to submit such representations. The lawful period is given by regulation 3(2)(b) and it is given as any time before the NtO is served and as such a PCN must convey this fact to the recipient.

Such failure could prejudice the recipient in that they may only believe they have 28 days to submit an informal representation when the truth is that they have as long as it takes for the authority to serve the NtO. For instance, a person (where the NtO has not yet been served) may only remember about the PCN on the 30th day after service and as the PCN implies you can only challenge within 28 days that person will not appeal. However, that person is lawfully entitled to appeal informally if no NtO has yet been served. It is possible that an NtO may take 6 months to serve and anytime during this period the council are legally obliged to consider any informal representation submitted.

Again I expect you to cancel this penalty charge forthwith. If you do not cancel then I will require you to explain fully why you think the PCN does comply with regulation 3(2)(b).

Under the provisions of the Traffic Management Act 2004 I am entitled to a submit an appeal that you have a duty to consider and to which you have a duty, should you reject my appeal, to provide me with clear and full reasons in reply to my points of appeal. This duty is set down in the Secretary of State’s Statutory Guidance and the Traffic Management Act 2004 under section 87 clearly advises that local authorities must have regard to this statutory guidance. Therefore should you fail to reply specifically to each point and provide the required evidence then I will be, due to your improper consideration, including a further charge of procedural impropriety when my defence is submitted for adjudication and in addition I will proceed with a formal complaint, regarding your maladministration, to the office of the council’s Chief Executive.

Yours with love, hugs and kisses