How to get a bus lane PCN in London cancelled

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

They left the word 'London' off the name of the legislation

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.

 

Lots wrong at the Kensington & Chelsea car pound

As readers will know, there is a risk in some boroughs that a car with a PCN on the windscreen can be removed to a secure pound (in Lots Road for this borough) and recovered only after paying 50% of the PCN (as you are hopefully paying within 14 days so get the discount) a £200 removal fee and £40 per night storage.

For parking PCNs (as opposed to other types) the pound may only demand payment of the PCN which led to the removal. This is the law and it is also stated in the Statutory Guidance of the Secretary of State which a council must know and follow.

How, therefore, did the car pound operated by NSL on behalf of the Royal (as in right royal cock up) Borough of Kensington & Chelsea ('K&C') decide to hold Mr Calm (not his real name) over a barrel and decide to simply refuse to follow the law. Lord Mustill, in the case of Doody, had this to say:

Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.

There is no exception to the law at the Lots Road Car Pound - well not after this episode there isn't.

So there you are late at night being right royally messed about and lied to by the senior staff at the pound and all credit to Mr Calm, he really was pretty calm under the most severe provocation and whilst his Human Rights were being trampled on.

This was a situation which was being managed late at night by telephone by a particularly knowledgeable pro bono PCN expert called Ivan Murray-Smith. He can quote parking laws faster than anyone Mr Mustard has ever met and in the background he was being guided by other experts although Mr Mustard had been working hard and was a bit jetlagged from a work trip so at 1am he went to bed.

Two complaints were made to K&C. Here is their response along with commentary by Mr Mustard

It is pleasing to see the Head of Parking take responsibility.

There needs to be a bit more flexibility in documentation for release. If you have the keys and can state what items are in the glove box, for sure you are closely connected to the vehicle. If you are visiting from Birmingham or Manchester you are unlikely to be carrying anything other than your driving licence. Mr Mustard leaves an insurance schedule in his car as others sometimes drive his car (yes, they are insured!).

At the end of this first page you can see that Mr Calm was 'asked' to pay for 4 other PCNs. That was an 'ask' where a metaphorical gun is at your head, it certainly wasn't asking nicely, it was an if you don't....

This is how to respond to a complaint. Admit you were wrong 'should not have asked Mr Calm to do this'.

Having had his nose pressed into the Traffic Management Act that empowers him the Duty Pound Manager has been awakened from his entitled slumber.

There is a world of difference between making motorists aware of something and refusing to release their car unless more money is handed over, a payment which brings the challenge process to an end.

When K&C refer to friend/solicitor they mean 'representative'.

Refusing to leave at midnight was fair enough. It wouldn't have made any difference if Mr Calm had objected to the police being called, the pound would have phoned them regardless. Did the pound give Mr Calm the name and number of a suitably senior officer, who did know parking law? no, of course they didn't. They are the public face of K&C and should have dealt with this situation much better.

What the police did isn't a matter for the parking manager who wasn't there. If he was on call for the pound this situation could have been prevented.

The police response seems to be entirely correct in the circumstances although K&C were breaking the law it isn't as clear cut as being called to a burglary and letting Mr Calm have his belongings from the car was helpful (Mr Mustard doesn't know what but it could have been important documents, medicines, money, whatever).

Here it is admitted that payment of £265 should have led to the release of the car.

When K&C say they 'discovered' the absence of an MOT they mean they looked it up on the DVLA website just like we all can. It had expired on 23 November and they nabbed the car on the 25th so out of date but not hideously so. It now has one.

K&C say they have 'internal processes' which enable paid PCNs to be challenged. Do they publish these anywhere as otherwise how would the public know? Mr Mustard had a look around the K&C web pages but couldn't find this policy. He will have to ask for a copy of it and any others they keep to themselves.

Having deliberately got things wrong at the pound the permit team then make matters worse by accidentally refusing a permit application and Mr Mustard doubts that there is a single road in the borough where you can easily park for free for 24 hours a day as the entire borough has controlled parking zone hours for some of each day on most days of the week. This was to compound Mr Calm's problems and expense.

'NSL were incorrect', say K&C, too right they were.

'NSL should not have insisted', correct again.

'I can assure you that NSL were not engaging in extortion or blackmail...' but what were they doing, it certainly wasn't lawful.

 

Mr Mustard's main takeaway from this shocking fiasco are the arrogant and contemptible statements of the staff who, safely ensconced behind their glass screens, think they can say and do what they like:

'We do not follow the law' and

'I don't want to listen to the law'

Mr Mustard thinks they will be following the letter of the law from now on as will the staff at any other NSL operated car pound.

Reprimands are the order of the day, without the tape recordings there would be an argument about what was said. Feel free if you end up at the car pound to leave your camera or voice recorder running.

Oh dear, there is no TMA 2008 (Traffic Management Act). What the manager meant to refer to is correctly identified on the K&C website, if only they had looked at it.

Second-hand apologies aren't worth much. Personal hand written apologies would be more valued, remember this one?

Mr Mustard thinks they will play with a straight bat at Lots Road from now on.

This was not a one off. Please come forward if you have been hoodwinked into paying more than one parking PCN (not bus lane or moving traffic) by any car pound in London.

The End.