It was a foul night but Ealing Council still wanted a bus lane PCN to be paid despite the terrible visibility causing a motorist to cut across the last part of a bus lane, one he knew was out there somewhere but couldn't see. This is a PCN that should either not have been issued or else cancelled exercising the council's discretion; no chance, they are desperate for your £130 or £65, the greedy fools.
This is the second consecutive blog in which Mr Mustard pays tribute to another PCN expert, one Ivan Murray-Smith, who unlike Mr Mustard didn't take it for granted that councils (& TfL) in London had done the necessary paperwork to properly authorise their use of bus lane cctv but checked and decided that officialdom had erred, big time.
The principal legislation which pertains to bus lanes is the London Local Authorities Act 1996 (as amended) which contains two provisions as to cameras.
The first is that it is a 'prescribed device' and the second is that it is 'approved' by the Secretary of State. Mr Mustard was going to set out the particulars for you but they are comprehensively discussed in the adjudicator's extremely well considered written decision in Duthieuw v London Borough of Ealing.
Before discussing the decision Mr Mustard just wants to ask all drivers to stay out of the bus lane during the hours of operation. No decision at the tribunal is a precedent and although this is a key case it is still possible that there will be a change in legislation which will change the legal position. (No decision by an adjudicator sets a precedent as that is what the legislation says but a key case on the tribunal website will almost certainly be followed by other adjudicators as the chief adjudicator must think it is of general application or it surely couldn't be so published).
Look at this, the seriousness of the challenge to one PCN worth £130 worried Ealing Council so much that they threw a barrister at the problem, a perfectly civil gentleman who Mr Mustard happened to see at the tribunal as he was there for another case. The barrister will have cost a pretty penny, far more than the £130 that Ealing would have not garnered if they had looked at the foul weather and cancelled the PCN in the first instance. Ealing weren't fighting Ivan alone, a whole host of experts were rowed up behind him in the shadows.
The barrister was given a hopeless case, the legislation is clear, and it would have been a travesty of justice if Ealing had won. There have been a dozen cases on this ground which each separate local authority had lost. Mr Mustard had deployed the argument to good effect in August against Barnet, some 3 months prior to the Duthieuw decision (and thank goodness for people like Davy Duthieuw who are prepared to risk losing £130 for the good of every other motorist and Ivan who spends a huge amount of his spare time helping the public for free).
Now you can see the argument, the camera is prescribed but not approved. The umbrella body for councils in London is called 'London Councils' (yes, not at all original). They covered this point in one of their committee meetings which Mr Mustard listened to on line as they are public. A small note was buried within the copious meeting papers
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They left the word 'London' off the name of the legislation
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and this simply didn't get discussed at the meeting.This sets out the legal position. Councils in London and TfL can legally issue PCNs but if anyone makes representations against the Enforcement Notice and then, if rejected, starts an Appeal to an independent adjudicator at London Tribunals the council concerned can't produce any legally admissible cctv evidence so the Appeal must be allowed and the PCN must be cancelled (as a first step you will have to challenge the PCN and then get a rejection and wait for the Enforcement Notice some 30+ days later, so be patient). This is almost certain to be the answer if you enlist the help of an expert by posting your PCN on the sillily named but very useful website PePiPoo here where one of several selfless experts will step forward to help you for free, save for a charitable donation directly to their favourite charity.
The opinion of a solicitor friend of Mr Mustard's, a proper big city lawyer, now retired but helping various charities, was:
"With all due deference to Mr Rhimes, who did his best with what he had to work with, the 'it's not admissible, but I can fix that by watching it for you' argument is one of the daftest things I've read all year."
Now, let's assume you have a bus lane PCN or Enforcement Notice, what should you do? Fight it, you may have to fight both documents but the challenge to send is the same for both (you are allowed to repeat your arguments and need to for consistency). Go onto the council website, if they have one, otherwise email or write, and say this
'I deny the contravention occurred. I put the enforcement authority to proof that they have a valid Traffic Management Order and that signs were in place at the start of the bus lane which put me on notice of the time and days of operation of the bus lane.
Furthermore, I deny that the enforcement authority has the necessary approval of the Secretary of State in order to allow for their cctv evidence to be produced to an independent adjudicator and so ultimately the PCN must be cancelled. I rely on the key case listed on the London Tribunals website of Duthieuw v London Borough of Ealing - case 2220486482'
and add any other grounds which apply to your particular situation.
Any sensible enforcement authority will recognise a motorist who knows their rights and will cancel the PCN so as not to waste c. £30 of tribunal fees (which they can't get back from the motorist as you are not being frivolous, vexatious or wholly unreasonable and so costs cannot be awarded against you).
This failure by enforcement authorities won't last for ever. What are you waiting for, do your representations now, today, don't dilly dally.
The end.
p.s. outside Greater London you only get a PCN to fight, no Notice of Enforcement, as their bus lane legislation is different and this blog post does not apply.
This blog applies if you were filmed within this map and sent a Bus lane PCN and/or Enforcement Notice including by TfL.
