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CORNHILL (BANK) Contravention Code 52M Successful Appeal
TomFrLondon
Posts: 2 Newbie
I tweaked information I found online, namely from pepipoo forums.
Contravention code 52M Failing to comply with a prohibition on certain types of vehicle (motor vehicles) - only buses and bicycles allowed Monday to Friday between 7am and 7pm
Location: CORNHILL
Observed By: UNTD
Basically driving through Bank during the day.
Was successfully appealed (I can’t add images as a new user). See images at ibb.co
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bV5HkK
f9rjXz
Online appeal as below:
1. The contravention did not occur because of missing road markings.
ETA case 2170469229 is appropriate:-
"The blue signs would appear to require the presence of the carriageway legend “BUS GATE” which seems to be absent.
Schedule 9 Part 5 para 1 TSRGD 2016 provides that the information etc. of a description in column 2 of an item in the sign table in Part 6 “must” be conveyed by a road marking shown in column 3 .
Item 15 of the sign table in part 6 contains the description ” Road or part of a road with access permitted only for buses and other vehicles when so indicated by any of the signs at items 33 to 35 and 37 to 40 in the sign table in Part 2 of Schedule 3”.
The restricted access of that type in the present case is indicated by a (permitted variant of) a sign to Diagram 953 shown in the Schedule 3 Part 2 sign table at item 33. It would follow that the carriageway legend is mandatory and that authorisation is required to dispense with it."
2. The contravention given is untenable
The London Local Authorities and Transport for London Act 2003 prohibits a contravention which is based on the TMO at the same time as the restriction has a Sect 36 sign (diagram 953).
With respect, I would refer the adjudicator ETA 2170058483 and the Review of that Decision.
In that case the adjudicator ruled as follows:-
Extract
“Mrs Imeybore does not dispute that she did indeed drive through a “bus gate” along a section of Rye Lane reserved for buses and cycles. However Mr Dishman has put forward a number of arguments on her behalf. Although I went through these in some detail with him at the hearing, I confine this decision to only one of them, on the basis of which I will allow both appeals. It relates to the wording of the allegation contained in each of the PCNs, as follows.
“Contravention Code and Description: Using a route restricted to certain vehicles (buses and cycles only). Contravention Code: 33C.”
Although it has taken some time looking at Google maps to identify the layout of this junction, and to relate it to the various definitions and prohibitions in the Traffic Management Order (TMO), I am satisfied that the TMO does prohibit the manoeuvre that Mrs Imevbore made in her car. It follows that I am satisfied that in doing so she acted in prohibition of a prescribed order. However the sign on which the Authority relied to indicate the terms of that order, i.e. the blue sign with images of a bus and cycle on it, is a “Section 36” sign, as defined in the London Local Authorities and Transport for London Act 2003 (the 2003 Act) and the Road Traffic Act 1988.
Section 4 of the 2003 Act provides, so far as is material to this case,
“(1) This section applies where
(a) in relation to a GLA road or GLA side road, Transport for London or, subject to subsection (3) below, the relevant borough council; or
(b) in relation to any other road in the area of a borough council, the relevant borough council or, subject to subsection (4) below, Transport for London, have reason to believe (whether or not on the basis of information provided by a camera or other device) that a penalty charge is payable under this section with respect to a motor vehicle.
(2) Transport for London or, as the case may be, the relevant borough council may serve a penalty charge notice
(a) in relation to a penalty charge payable by virtue of subsection (5) below, on the person appearing to them to be the owner of the vehicle; and
(b) in relation to a penalty charge payable by virtue of subsection (7) below, on either or both of the following
(i) the person appearing to them to be the operator of the vehicle; and
(ii) the person appearing to them to be the person who was in control of the vehicle at the time of the contravention.
…
(5) Subject to subsection (6) below, for the purposes of this section, a penalty charge is payable with respect to a motor vehicle by the owner of the vehicle if the person driving or propelling the vehicle
(a) acts in contravention of a prescribed order; or
(b) fails to comply with an indication given by a scheduled section 36 traffic sign.
(6) No penalty charge shall be payable under subsection (5)(a) above where
(a) the person acting in contravention of the prescribed order also fails to comply with an indication given by a scheduled section 36 traffic sign.”
What is clear from these provisions is that where the contravention consists of failing to comply with the indication given by a Section 36 traffic sign, the Authority is proscribed from demanding payment of a penalty charge for an alleged contravention of the TMO. They may only demand payment on the grounds that the motorist had failed to comply with the sign.
Whilst I accept that the PCN Code wording used by the Authority is one provided by London Councils, I am not satisfied that it properly reflects the only contravention for which the Authority may demand payment of a penalty charge on the basis of the sign that they rely on here. (I note that the London Councils list of standard PCN codes does include wordings for other contraventions, such as “Failing to drive in the direction shown by the arrow on a blue sign” and “Failing to comply with a sign indicating that vehicular traffic must pass to the specified side of a sign”, so it is unclear why they did not adopt a similar form of wording for this contravention as well.)
I find therefore that neither of the PCNs issued in these cases was a valid PCN, and so I must allow these appeals.
This is an application by the Enforcement Authority for a review of the decision of the original Adjudicator.
The Authority is represented by Ms D and Ms B. Mr D represents the Appellant.
Review of an Adjudicator's decision is provided for in Paragraph 12 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 (the 'Appeal Regulations'). The adjudicator may, on the application of a party, review any decision to dismiss or allow an appeal, on one or more of the following grounds:
An inherent part of the scheme is to ensure that the Adjudicator's decision is final and conclusive, save in very exceptional cases. It is clear from the narrow grounds set out in the Regulations (and the general scheme of the Traffic Management Act 2004) that a party is not able to seek a review of a decision merely because that party believes the decision is wrong
It is common ground that the Appellant drove past a left turn only sign and then past a bus route sign on two occasions on 6 January 2017 and at the same location. The PCNs aver “Contravention Code and Description: Using a route restricted to certain vehicles (buses and cycles only). Contravention Code: 33C.”
The original Adjudicator found that the Traffic Management Order does prohibit the Appellant's manoeuvre and she has accordingly acted in prohibition of a prescribed order.
Section 4 (5) of the London Local Authorities and Transport for London Act 2003 (the 2003 Act) and the Road Traffic Act 1988 provides .
"Subject to subsection (6) below, for the purposes of this section, a penalty charge is payable with respect to a motor vehicle by the owner of the vehicle if the person driving or propelling the vehicle
(a) acts in contravention of a prescribed order; or
(b) fails to comply with an indication given by a scheduled section 36 traffic sign."
Section 4 (6) goes on to provide:
" No penalty charge shall be payable under subsection (5)(a) above where
the person acting in contravention of the prescribed order also fails to comply with an indication given by a scheduled section 36 traffic sign.”
The Adjudicator has therefore found that where a manoeuvre consists of failing to comply with the indication given by a Section 36 traffic sign or is in breach of a traffic order, the Authority is proscribed from demanding payment of a penalty charge issued under 5a (for an alleged contravention of the TMO). It may only demand payment on ground 5b (the motorist had failed to comply with the sign.)
It is common ground that the sign on which the Authority relied to indicate the terms of that order, i.e. the blue sign with images of a bus and cycle on it, is a “Section 36” sign. The PCN must therefore allege non-compliance with the sign and not a failure to comply with the traffic order.
The Adjudicator find therefore that neither of the PCNs issued in these cases was a valid PCN, and he allowed both appeals.
The Authority does not agree with the finding. It argued that the allegation of using a route restricted to certain vehicles has been used in conjunction with the blue sign (to diagram 953) for 14 years pan London. It also mentioned that in 2009, Authorities were asked to desist from using this averment where the effect of the traffic order was indicated by a non section 36 sign. This is a different point, which is that a failure to comply with a sign is not a contravention unless it is a section 36 sign.
The original Adjudicator made a finding that he was entitled to make on the evidence before him. The decision discloses no error of law. Considering carefully everything before me in this case, I cannot find any ground under the Regulations for review and thus the original decision must therefore stand.”
For the above reasons I believe the contravention cannot be sustained and the PCN must be cancelled.
Hope it helps some of the thousands of others being caught in this money trap each month!!!
Tom
Contravention code 52M Failing to comply with a prohibition on certain types of vehicle (motor vehicles) - only buses and bicycles allowed Monday to Friday between 7am and 7pm
Location: CORNHILL
Observed By: UNTD
Basically driving through Bank during the day.
Was successfully appealed (I can’t add images as a new user). See images at ibb.co
bHW7kK
bV5HkK
f9rjXz
Online appeal as below:
1. The contravention did not occur because of missing road markings.
ETA case 2170469229 is appropriate:-
"The blue signs would appear to require the presence of the carriageway legend “BUS GATE” which seems to be absent.
Schedule 9 Part 5 para 1 TSRGD 2016 provides that the information etc. of a description in column 2 of an item in the sign table in Part 6 “must” be conveyed by a road marking shown in column 3 .
Item 15 of the sign table in part 6 contains the description ” Road or part of a road with access permitted only for buses and other vehicles when so indicated by any of the signs at items 33 to 35 and 37 to 40 in the sign table in Part 2 of Schedule 3”.
The restricted access of that type in the present case is indicated by a (permitted variant of) a sign to Diagram 953 shown in the Schedule 3 Part 2 sign table at item 33. It would follow that the carriageway legend is mandatory and that authorisation is required to dispense with it."
2. The contravention given is untenable
The London Local Authorities and Transport for London Act 2003 prohibits a contravention which is based on the TMO at the same time as the restriction has a Sect 36 sign (diagram 953).
With respect, I would refer the adjudicator ETA 2170058483 and the Review of that Decision.
In that case the adjudicator ruled as follows:-
Extract
“Mrs Imeybore does not dispute that she did indeed drive through a “bus gate” along a section of Rye Lane reserved for buses and cycles. However Mr Dishman has put forward a number of arguments on her behalf. Although I went through these in some detail with him at the hearing, I confine this decision to only one of them, on the basis of which I will allow both appeals. It relates to the wording of the allegation contained in each of the PCNs, as follows.
“Contravention Code and Description: Using a route restricted to certain vehicles (buses and cycles only). Contravention Code: 33C.”
Although it has taken some time looking at Google maps to identify the layout of this junction, and to relate it to the various definitions and prohibitions in the Traffic Management Order (TMO), I am satisfied that the TMO does prohibit the manoeuvre that Mrs Imevbore made in her car. It follows that I am satisfied that in doing so she acted in prohibition of a prescribed order. However the sign on which the Authority relied to indicate the terms of that order, i.e. the blue sign with images of a bus and cycle on it, is a “Section 36” sign, as defined in the London Local Authorities and Transport for London Act 2003 (the 2003 Act) and the Road Traffic Act 1988.
Section 4 of the 2003 Act provides, so far as is material to this case,
“(1) This section applies where
(a) in relation to a GLA road or GLA side road, Transport for London or, subject to subsection (3) below, the relevant borough council; or
(b) in relation to any other road in the area of a borough council, the relevant borough council or, subject to subsection (4) below, Transport for London, have reason to believe (whether or not on the basis of information provided by a camera or other device) that a penalty charge is payable under this section with respect to a motor vehicle.
(2) Transport for London or, as the case may be, the relevant borough council may serve a penalty charge notice
(a) in relation to a penalty charge payable by virtue of subsection (5) below, on the person appearing to them to be the owner of the vehicle; and
(b) in relation to a penalty charge payable by virtue of subsection (7) below, on either or both of the following
(i) the person appearing to them to be the operator of the vehicle; and
(ii) the person appearing to them to be the person who was in control of the vehicle at the time of the contravention.
…
(5) Subject to subsection (6) below, for the purposes of this section, a penalty charge is payable with respect to a motor vehicle by the owner of the vehicle if the person driving or propelling the vehicle
(a) acts in contravention of a prescribed order; or
(b) fails to comply with an indication given by a scheduled section 36 traffic sign.
(6) No penalty charge shall be payable under subsection (5)(a) above where
(a) the person acting in contravention of the prescribed order also fails to comply with an indication given by a scheduled section 36 traffic sign.”
What is clear from these provisions is that where the contravention consists of failing to comply with the indication given by a Section 36 traffic sign, the Authority is proscribed from demanding payment of a penalty charge for an alleged contravention of the TMO. They may only demand payment on the grounds that the motorist had failed to comply with the sign.
Whilst I accept that the PCN Code wording used by the Authority is one provided by London Councils, I am not satisfied that it properly reflects the only contravention for which the Authority may demand payment of a penalty charge on the basis of the sign that they rely on here. (I note that the London Councils list of standard PCN codes does include wordings for other contraventions, such as “Failing to drive in the direction shown by the arrow on a blue sign” and “Failing to comply with a sign indicating that vehicular traffic must pass to the specified side of a sign”, so it is unclear why they did not adopt a similar form of wording for this contravention as well.)
I find therefore that neither of the PCNs issued in these cases was a valid PCN, and so I must allow these appeals.
This is an application by the Enforcement Authority for a review of the decision of the original Adjudicator.
The Authority is represented by Ms D and Ms B. Mr D represents the Appellant.
Review of an Adjudicator's decision is provided for in Paragraph 12 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 (the 'Appeal Regulations'). The adjudicator may, on the application of a party, review any decision to dismiss or allow an appeal, on one or more of the following grounds:
An inherent part of the scheme is to ensure that the Adjudicator's decision is final and conclusive, save in very exceptional cases. It is clear from the narrow grounds set out in the Regulations (and the general scheme of the Traffic Management Act 2004) that a party is not able to seek a review of a decision merely because that party believes the decision is wrong
It is common ground that the Appellant drove past a left turn only sign and then past a bus route sign on two occasions on 6 January 2017 and at the same location. The PCNs aver “Contravention Code and Description: Using a route restricted to certain vehicles (buses and cycles only). Contravention Code: 33C.”
The original Adjudicator found that the Traffic Management Order does prohibit the Appellant's manoeuvre and she has accordingly acted in prohibition of a prescribed order.
Section 4 (5) of the London Local Authorities and Transport for London Act 2003 (the 2003 Act) and the Road Traffic Act 1988 provides .
"Subject to subsection (6) below, for the purposes of this section, a penalty charge is payable with respect to a motor vehicle by the owner of the vehicle if the person driving or propelling the vehicle
(a) acts in contravention of a prescribed order; or
(b) fails to comply with an indication given by a scheduled section 36 traffic sign."
Section 4 (6) goes on to provide:
" No penalty charge shall be payable under subsection (5)(a) above where
the person acting in contravention of the prescribed order also fails to comply with an indication given by a scheduled section 36 traffic sign.”
The Adjudicator has therefore found that where a manoeuvre consists of failing to comply with the indication given by a Section 36 traffic sign or is in breach of a traffic order, the Authority is proscribed from demanding payment of a penalty charge issued under 5a (for an alleged contravention of the TMO). It may only demand payment on ground 5b (the motorist had failed to comply with the sign.)
It is common ground that the sign on which the Authority relied to indicate the terms of that order, i.e. the blue sign with images of a bus and cycle on it, is a “Section 36” sign. The PCN must therefore allege non-compliance with the sign and not a failure to comply with the traffic order.
The Adjudicator find therefore that neither of the PCNs issued in these cases was a valid PCN, and he allowed both appeals.
The Authority does not agree with the finding. It argued that the allegation of using a route restricted to certain vehicles has been used in conjunction with the blue sign (to diagram 953) for 14 years pan London. It also mentioned that in 2009, Authorities were asked to desist from using this averment where the effect of the traffic order was indicated by a non section 36 sign. This is a different point, which is that a failure to comply with a sign is not a contravention unless it is a section 36 sign.
The original Adjudicator made a finding that he was entitled to make on the evidence before him. The decision discloses no error of law. Considering carefully everything before me in this case, I cannot find any ground under the Regulations for review and thus the original decision must therefore stand.”
For the above reasons I believe the contravention cannot be sustained and the PCN must be cancelled.
Hope it helps some of the thousands of others being caught in this money trap each month!!!
Tom
0
Comments
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Did you mean to post this on Pepipoo?1
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I think Tom has posted it for our info, and in fact it is a very interesting finding regarding this sort of TFL contravention! The Council didn't like it, appealed and failed so it stands as a 'key case' for Council and TFL penalties that rely on a Section 36 sign.
Basically it's saying that if TFL choose to rely on a ''section 36 sign'' then they cannot accuse a driver of ''contravening a traffic order''. The two things are distinctly separate and good old Mr Mustard helped to achieve this decision, which will help those of us who fight the occasional TFL or Council Penalty that relies upon a ''section 36'' sign but tells the victim that the penalty falls due under a TMO.
As I read it, the contravention can't be both, as the law quoted above clearly (strangely) says no penalty if there are 'two wrongs'!
The above decision shows the stark difference between the decisions made by the Tribunal in 'proper' penalty cases, and POPLA decisions. It will be very interesting how the Parking Bill pans out if it can achieve this level of legal knowledge and scrutiny, or even close...
I have a case in at TFL Adjudication at the moment, for my nephew. Not the same facts but we will see.
PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD2 -
IMHO you need your head examined to be driving through Bank in the first place but at least the charity has the donation for all Derek's good workThis is a system account and does not represent a real person. To contact the Forum Team email forumteam@moneysavingexpert.com0
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I used yours as a template and just won my appeal straight away. thank you so much for sharing!0
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Thanks a lot for sharing. Used exactly the same wording and managed to get 3 PCN taken 3 days in a row cancelled as I completely failed to see the access restriction on my scooter. PCN were issued early October.0
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Used above template, cancelled on 16nov.18. Thank you v m, op.Quidco: 999.76 cash back so far!0
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I recently contested a Council ticket and won, the system is very fair imo.You never know how far you can go until you go too far.0
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I have used TPT twice and found them to be completely unbias unlike the assessors in the private parking industry such as POPLA and the scam IPC
One was in Brighton using a hotel permit that did not tally with the signs ...... even got the council to apologise
The other was in Berkshire, the TPT ruled in my favour but the stupid council objected to the TPT. This clearly upset the TPT because they denied the council the extra appeal.
Due to the nature of my appeal which clearly would affect many other people, I had an article in the local press, to advise anyone caught in this money trap to go and get their money back from the council ?
As you can imagine, the council went mad and threatened me with the magistrates court. My reply via the paper was to warn the people of this Berkshire town that the council are about to abuse and misuse tax payers money.
Suffice to say that was the last I heard
The point here is that in the private parking sector the motorist is hoodwinked everyday by pretend assessors set up by the two rubbish ATA's
We can only hope the new bill will sort this out
I can only say about TFL, someone must pay for the mayor and his department ?????1 -
Hi there - I am appealing on behalf of my son who has just received 7 pcns for contravening code 52M! He had no idea he was accessing a prohibited street as he didn't see any signs. He is a wheelchair user and needs his car to get to work (the underground is mostly unacessible for him). Since the pcns started to arrive in the post, he is too afraid to drive and is struggling with taxis and the underground. So, I want to contest these pcns. I have read the previous posts but am confused as to exactly what I need to include in the appeal: Tom's post in Sept '18 looks very convincing but very long so I'm wondering how much of that do I need to quote? I see that Lisa, Astagalini and Pokka all have had successful appeals. What exactly did you write in your emails to CoL? Grateful of any advice.0
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You copy it all.
Technicalities are how to win Council PCN appeals (I have also won several and lost none, some v TFL and some local authority).PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD1
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