Elmfield Avenue School time car access restrictions

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Permalink Reply by Brian Ahearne on September 7, 2021 at 6:16

I lost. Judicial Review, anyone? 

Adjudicator's Reasons

At this scheduled personal hearing the Appellant attended by telephone but the Enforcement Authority did not attend and were not represented, either by telephone or in person.

A contravention can occur if a vehicle is driven so as to fail to comply with a restriction on vehicles entering a pedestrian zone. 

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 vehicle is seen to pass the sign which, as the evidence clearly shows, indicates that, subject to certain exceptions which do not apply in this case, except for permit holders, all motor vehicles are prohibited at specified times, including that when the vehicle was observed.

The Appellant's case is that the signage was inadequate due to its position and the size, the complex details upon it and the fact that it did not refer to term time, which was the purpose of the Traffic Management Order. The Appellant also submits that the camera enforcement signs were in in wrong place.

The sign, on each side of the carriageway, is that prescribed by Diagram 618.3B at Item 2 in Part 2 of Schedule 8 to the Traffic Signs Regulations and General Directions 2016 ('the TSRGD2016'), being a permitted variant thereof, as indicating 'entry to, and waiting in, a pedestrian and cycle zone restricted'. The 'no vehicles' roundel is also illustrated in the current edition of the Official Highway Code. There is no permitted variant of a legend 'term time only' or similar for this sign. It any event, it is likely only to be confusing as to what it means exactly. Restrictions apply on the days and at the times shown. This includes, for example, bank holidays.

The Appellant submits that the use of cameras to enforce the restriction is not well publicised. There is no requirement for any sign to warn of camera enforcement of this contravention, any more than there is to warn that police or civil enforcement officers may be patrolling. If there is a sign to indicate such enforcement, as there is here, then it must be that prescribed by Diagram 878 at Item 63 in Par 2 of Schedule 11 to the TSRGD2016, mor a permitted variant thereof, as indicating an area in which enforcement cameras are in use. The contemporaneous images show that sign on both posts at this location appears to comply with the prescription of Diagram 878.

The Appellant submits that Regulation 18(1)(a) of the Local Authorities' Traffic Orders (Procedure) (England & Wales) Regulations 1996 requires enforcement authorities to go further than merely placing the minimum signs required by the TSRGD2016. This is correct but in many, if not the majority of cases, the minimum signage will clearly be adequate to inform the motorist of the requirements.

Each case turns on its own facts, but I have been referred by the Appellant to another case at this location, ETA2210394424. In that case, I was not satisfied on the evidence produced that the signage, for a motorist turning left at this junction, was such as adequately to inform the motorist of the prohibition. In this present case the Appellant's vehicle was turning right. Unlike the situation for a vehicle turning left, one of the prohibition signs is angled towards oncoming traffic that maybe turning right.

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. This includes making sure that they comply with all restrictions and prohibitions indicated by the signs.

The Appellant makes submissions about the grounds of appeal and their limitation. Different Penalty Charge Notices have different statutory provisions and different ground of appeal.

This present Penalty Charge Notice was issued under the London Local Authorities and Transport for London Act 2003. The grounds for representations and appeal are set out in Paragraph 1(4) of Schedule 1, and are:

(a) that the appellant was not the owner of the vehicle at the material time; An independent tribunal for environment, parking and traffic penalty appeals Environment and Traffic Adjudicators are supported by London Tribunals, a service provided by London Councils Calls to London Tribunals may be recorded
(b) that there was no contravention;
(c) that the vehicle was in the control of a person without the consent of the owner;
(d) that the appellant is a vehicle-hire firm; or
(e) that the penalty charge exceeded the amount applicable in the circumstances of the case.

These are the only grounds upon which the Adjudicator can allow an appeal and there is no provision in the 2003 Act, in respect of this type of Penalty Charge Notice, for the Adjudicator to make anyformal recommendation to the Enforcement Authority.

The Appellant has made a number of detailed submissions about the Haringey (Prescribed Routes) (No. 9) Experimental Order 2021, including the consultation procedure, I note all of these submissions but the Adjudicator cannot go behind a Traffic Management Order. The Order can be challenged in the High Court within six weeks of being made, which in this present case was on 1 April 2021.

The Enforcement Authority may have cancelled a previous Penalty Charge Notice issued at this location and as regards this present Penalty Charge Notice did, in exercise of their discretion, reoffer the reduced penalty period in their Notice of Rejection and whilst I note all that the Appellant says regarding the circumstances, the Adjudicator is only able to decide an appeal by making findings of fact on the basis of the evidence actually produced by the parties and applying relevant law. The Court of Appeal has affirmed that the Adjudicator has no power to consider mitigating circumstances of any description, including reducing the amount of the full penalty charge.

Considering all the evidence before me carefully I must find as a fact that, on this particular occasion, a contravention did occur, and the Penalty Charge Notice was properly issued.
Accordingly, this appeal must be refused.

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Permalink Reply by Paul Greaney on September 7, 2021 at 13:27

Looks like, despite having set a precedent in the 1 case where he awarded against the Council, in favour of the appellant (you know who that was, Brian). So, even if your argument was very similar to his, I'm guessing the fact you were coming from another direction (turning right into Elmfield) rendered your case an offence with duly visible signage, as far as the adjudicator was concerned. 

Seems to me the Adjudicator didn't want to open the flood-gates!! My sympathies to you.

A JR would be costly, I guess.

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Permalink Reply by Michael Anderson on September 7, 2021 at 14:08

The National Council for Voluntary Organisations  has a useful guide to the judicial review process.

https://knowhow.ncvo.org.uk/how-to/how-to-work-out-if-you-should-ap...

£25-40k is a basic cost plus the legal expenses of the winning side if they claim them.

Have you thought about writing to the local government ombudsman?  Costs nothing if even if the answer is that they won’t investigate it

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Permalink Reply by Justin Guest on September 7, 2021 at 14:49

Having followed this I suspect unless you find a killer point that has not already been found you will be struggling to win a review. The issue seems to boil down to the way the council has relied on signs to identify areas that are (I am sure most of us would agree are quite rightly) out of bounds for cars.

I was near Campsbourne School over the weekend and only saw the signs there at the last moment. Thankfully it was a weekend. I have to admit I find it increasingly harder to follow road rules. I am constantly trying to work out if I am in a 30 or 20 zone, and the proliferation of signs means you have to take your eyes/mind off the road even more, which on a narrow road with cars either side, and pedestrians/bikes/motorbikes and other cars can be a real challenge to see, let a lone process and understand!

I was also down Brick Lane area (the Hackney bit) the weekend before and it was stark the way roads they are protecting are sign posted with big concrete blocks narrowing the road.  This approach seemed to make it pretty clear the relevant delineation. There was no risk of ambiguity.

So, I think we should be asking our councilors to look again at whether the way they have approached making people aware of where they are and where they can or cannot be relying is fit for purpose. Of course, if it is a revenue raising exercise, then perhaps the answer will be yes!

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Permalink Reply by Paul Greaney on September 7, 2021 at 15:33

I think HM Govt has given local authorities huge latitude for interpreting the publicity and signage measures as they see fit. I think also it's clear that HM Govt sees this as a legitimate means by which LA's can raise money to fill the enormous gaps that have been left by 10 years of funding cuts, compounded by bigger demands on their services as others are also being scaled down. So, yes, although they wouldnt care to admit it, Councillors would privately concede this is an income generation opportunity

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Permalink Reply by Brian Ahearne on September 8, 2021 at 14:34

Yeah, judicial review wasn't a serious suggestion. However, I'm happy to share my submissions with local media and I too think they will appreciate being given the details of the FOI requests.

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Permalink Reply by DavidJ on May 7, 2022 at 12:01

I don't drive much so I am late coming to this. I received a penalty charge for turning right into Elmfield from Tottenham Lane - taking my daughter's dog to Hill's on Park Rd - at the end of January.  As is very obvious this is a ludicrous scheme. I found this thread helpful, thank you. 

I appealed because one of the notices at the entrance to Elmfield has been covered up. I also drew attention to the fact that the road layout and markings invite you to turn right at this point rather than carry on into the high street (there is a road narrowing and speed bump deterring entrance to  the high street). There are right hand turn lanes marked on the carriage way - one into Elmfield. The warning sign before the junction refers to restrictions on the next right hand turn - in it is actually the second right.  If you are trying to get to Park Road or Middle lane you have to make a right before the clock tower. Overall I would suggest it is extremely unlikely that any driver would be able to see and understand the restrictions in place. This is not only an exploitative and unfair way to raise money, it is also surely really dangerous to pretend that they have created a pedestrianised area outside a primary school.

Harringay dismissed my appeal - they ignored the various points I made as above and,  in a cut and paste job, pointed out that they were within their rights to only have one notice at the end of the road. I dug around a bit and discovered that there was indeed a relaxation in the signage rules in 2019. This allowed councils to only have 1 notice - in order to reduce street clutter and if appropriate and safe to do so.

I took the case to London tribunals - I felt so strongly that this was wrong (but knew from this thread that I was risking having to pay quite a lot more - up to £190 at this point). I had a FOI that told me that there had been 11375 PCNs issued up until the end of March 2021. They must have raised well over £1million.

I added  the FOI information and pointed out that Haringey had not reduced street clutter but had simply blacked out one of the signs, and had done nothing to make the scheme more visible. The evidence of the number of PCNs issued demonstrates that the scheme is not visible. My calculation is that there are 30 PCNs every hour that the scheme is in place.

A week before the hearing was due (I had volunteered to attend the hearing) - Haringey announced they would not contest this and therefore the fine was dropped.

Whilst pleased to not to pay £190, I am actually pretty furious. I felt quite bullied into just paying up - and all the risk, time and energy of taking this further was put onto me. It cost them nothing to unjustly demand money from me. The decision to cover up half the signs that are already in place is ludicrous and utterly cynical - and dangerous.  They have wasted a lot of my time.

I am a cyclist and I am horribly aware of awful provision is in this borough for cyclists.

I have contacted the London tribunal to express my disquiet  -  I got a sympathetic hearing and the person I spoke suggested I took it up with them as a complaint.  I am doing this - and will update if I hear back. 

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Permalink Reply by Brian Ahearne on May 7, 2022 at 12:32

I discussed this with a LibDem councillor who was canvassing me on the doorstep (amongst other matters). Seemingly the Lib Dems made attempts to object to the manner of the implementation, and the communication of the scheme. The discussion was in the past tense, so the inference I drew is that they've simply given up on addressing the continuing problem. Disappointing.

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