Author Topic: TMO 'Typo' May Lead to Bus Lane Refunds in Merton.  (Read 12632 times)

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Nigel W

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Re: TMO 'Typo' May Lead to Bus Lane Refunds in Merton.
« Reply #30 on: 06 July, 2012, 12:16:27 PM »
 :aplude: :aplude:  Very well done Blindowl.

Register Kept Under Regulation 20 of the Road Traffic (Parking Adjudicators)(London) Regulations 1993, as amended or Paragraph 21 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, as applicable

Case Reference:   2120281653
Authority:   Merton
PCN:   MT55023167
Contravention Date:   23 Feb 2012
Contravention Time:   18:19
Contravention Location:   Hartfield Road
Penalty Amount:   £130.00
Contravention:   Being in a bus lane
Decision Date:   05 Jul 2012
Adjudicator:   John Hamilton
Appeal Decision:   Allowed
Direction:   cancel the Penalty Charge Notice and the Enforcement Notice.
Reasons:   It is for the enforcing authority (the Authority) to prove a contravention has occurred on the balance of probabilities. An appellant does not have to prove anything. However if the authority produces sufficient evidence to support its allegation and an appellant then makes factual assertions that it is said show a contravention did not occur, there will normally be a need for the appellant to provide credible evidence in support of those assertions. The law is clear that it is the responsibility of motorists to ensure they are aware of the restriction that operate in the areas they chose to drive and park.

My power to allow appeals is limited. I can only allow an appeal if the enforcing authority has acted illegally or failed to follow proper procedures. I cannot allow an appeal if the authority has acted within the law but I feel it has acted harshly, have sympathy for the motorist or because I would have given more weight to the mitigating circumstances put forward by a motorist. Where a contravention has occurred but the motorist asks that it should not be enforced because of difficult or unfortunate circumstances relating to the contravention or his or her personal circumstances, only the Authority has the power to accept the motorist's mitigation and cancel the parking or other traffic penalty. Again, the law is clear, if the Authority rejects the motorist's mitigation, I have no power to interfere with that decision.

The appellant attended the appeal gave evidence and made representations.

The Authority relies on the CCTV footage which shows the appellant's vehicle enter the second part of a bus lane in Hartfield Road. A Penalty Charge Notice/Notice to Owner was subsequently issued.

The appellant agreed that his vehicle had entered the bus lane. He said that he had come to what he believed to be the end of the bus lane and followed an arrow in the road that indicated he was able to move over to the left. He had intended to turn left into a side road. However he realised this was not the road he wanted and decided to continue further down the road and take the next turning on the left. He said that he was faced with a split second decision and that it was not clear to him if the bus lane continued past the junction or not. There was no sign he could see indicating the bus lane continued. He continued down the road but then realised that the bus lane must still be continuing because no other vehicles were in the road and another arrow in the road ahead indicating a left turn appeared to indicate the end of a bus lane. He tried to get out of the bus lane but was prevented from doing this by the oncoming traffic. As the distance to the next turning was only about 100 yards he took that turning. He was in the bus lane for a matter of seconds and not causing any obstruction.

He raised a large number of points many of them technical in nature relating to the alleged contravention, the nature of the Authority's signage and the general conduct of the Authority. Most of these arguments did not in my view show the Authority had acted unlawfully or was unable to enforce the PCN. However, he produced photographs showing that the sign indicating the bus lane continued after the junction was twisted so that it was facing away from the road and clearly would not have been easily visible in daylight let alone at night. He produced another photograph taken some time later showing the Authority had rectified this problem and straightened the sign.

I had the benefit of viewing the CCTV footage although the Authority appears to use some sort of format which make sit problematic playing the DVD on the Tribunal's equipment. The footage fully supported the appellant's account and appears to show the twisted sign.

The appellant also produced a decision by Mr. Adjudicator Chan (2120242378) where an appeal was allowed in what appeared to be identical circumstances at the same location. This decision is not binding on me but I take the opinion of Mr. Chan seriously.

Having looked at the CCTV, I am not satisfied the Authority has shown the sign indicating the bus lane continued after the junction was sufficiently clear. I note that there are road markings but they alone are not in my view enough.  Bus lanes that continue after junctions are difficult for motorist and it is important that there is adequate signage in place. In this case I have found that at the time in question such signage was not in place and the Authority have therefore not shown a contravention occurred.

I am not satisfied the Authority has shown it is entitled to enforce the PCN against the appellant.


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