PCN No: XXXXXXXXXX
VRM: XXXX XXX
Dear Sirs
Preamble:
For the avoidance of any doubt if the Enforcement Authority force this matter to adjudication I will not consent to the disposal of the case without a hearing as is my statutory right by virtue of, the Schedule to The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations SI 2007/3482, regulations 6(3) and 6(4) as quoted below:
"Disposal of an appeal without a hearing
6.—(1) Subject to the following provisions of this paragraph, the adjudicator may dispose of an appeal without a hearing.
(2) The adjudicator shall not dispose of an appeal without a hearing if, in his opinion, the appeal raises issues of public importance such as to require that a hearing be held.
(3) The adjudicator shall not dispose of an appeal without a hearing if either party has requested a hearing unless—
(a)the party who made the request withdraws the request before notice of a hearing has been sent to the other party under paragraph 7;
(b)both parties have subsequently consented to the appeal being disposed of without a hearing; or
(c)the party requesting the hearing having been sent a notice of the hearing of an appeal in accordance with paragraph 7, fails to attend or be represented at the hearing.
(4) Where the adjudicator is minded to dispose of an appeal without a hearing, he shall not do so unless and until either—
(a)there has elapsed a period of 28 days beginning with the date on which an acknowledgement is sent in accordance with paragraph 3(1) during which neither party has requested a hearing; or
(b)both parties have consented to its disposal without a hearing."
Appeal:
1) The contravention did not occur.
I appeal against the penalty charge served upon me on the grounds that the council has failed in their statutory duty to sign the restriction in accordance with the law. The bay suspension sign used is not a permitted variant of any diagram from the TSRGD 2002.
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.
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 you as a Local Authority chose not to follow the scope of the law then you 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 you as a Local Authority ignore the overwhelming evidence that is in my favour and 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 you 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 you may attempt to apply it in your defence of the unlawful traffic sign.
For the reasons explained above I require the council to acknowledge their signing error and to cancel this penalty charge forthwith.
2) The contravention did not occur.
The council accuse me of being parked in a suspended bay or part thereof, but provide no evidence that the bay my vehicle was parked in was at the time of the alleged contravention in fact subject to suspension. The Council's own photographic evidence clearly shows that the temporary suspension sign that they rely on is placed in a parking bay that is further along the road and clearly separated from the bay where my vehicle was parked by a length of double yellow line. It is wholly unreasonable of the Council to expect a motorist to check for parking restrictions that are signed in a completely separate parking place. If the Council wish to pursue this matter further then they will need to provide evidence of a valid traffic sign that is placed in such a position that it adequately conveys the temporary bay suspension and that is applicable to the actual bay where my vehicle was parked.
3) There has been a procedural impropriety on the part of the enforcement authority.
The NTO issued by the Councils fails to comply with The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations SI 2007/3482, regulation 3(3)(d), as quoted below:
"3.
(3) A notice to owner served under regulation 19 of the General Regulations must, in addition to the matters required to be included in it under that regulation, include the following information—
(a)that representations on the basis specified in regulation 4 against payment of the penalty charge may be made to the enforcement authority, but that any representations made outside the period of 28 days beginning with the date on which the notice is served (“the payment period”) may be disregarded;
(b)the nature of the representations which may be made under regulation 4;
(c)the address (including if appropriate any email address or FAX telephone number, as well as the postal address) to which representations must be sent and the form in which they must be made;
(d)that if representations which have been made—
(i)within the payment period; or
(ii)outside that period but not disregarded,are not accepted by the enforcement authority the recipient of the notice may appeal against the authority’s decision to an adjudicator; and
(e)in general terms, the form and manner in which an appeal may be made."
The NTO makes no mention of representations that have been made outside of the payment period but not disregarded, regulation 3(3) states that this information must appear on the NTO. It is quite clear that the NTO does not comply with the statutory requirements and is fatally flawed in such a way as to render it a nullity in law, any attempted to enforce such a nullity is out-with the powers of the Council.
To add clarity to this matter, I refer to the binding High Court ruling of Jackson J, in R v The Parking Adjudicator (ex p Barnet), paragraph 41,
"Mr Lewis submits that even if there was non-compliance in this respect, nevertheless no prejudice was caused, PCNs should not be regarded as invalid. I do not accept this submission. Prejudice is irrelevant and does not need to be established. The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme, motorists become liable to pay financial penalties when certain specified statutory conditions are met. If the statutory conditions are not met, then the financial liability does not arise."
Although the above case relates to a PCN it is logically arguable that it is equally applicable to any paper that flows from a PCN and this point can be clearly demonstrated in the PATAS case Euroway v Kensington and Chelsea (2070247503), where the adjudicator, Martin Wood, correctly applied the findings of The Barnet Case against a Notice of Rejection. As it would clearly be ultra vires for the Council to pursue this matter further I require you to cancel the Penalty Charge Notice.
Closing Statement:
In light of the above and the fact that, "local authorities are statutory creatures and can do nothing except that which is expressly or impliedly authorised by statute" - Lord Templeman in Hazell v. Hammersmith and Fulham London Borough Council [1992] 2 A.C. 1. I require the enforcement authority to cancel this penalty charge notice forthwith.
In the event that these representations are rejected I will require the enforcement authority to fully explain in their rejection their full and detailed reasoning for rejecting each and every point as raised above. I will have no hesitation in taking this matter to adjudication, where I will be making a request for costs on the grounds that the enforcement authority have acted frivolously, vexatiously and wholly unreasonably in not accepting valid representations at the earliest opportunity.
Yours faithfully.
