A decade of bus lane PCN in London

 

This is a very varied picture by borough.

Overall the number of bus lane PCNs has increased by 13% in 10 years which rather indicates a high level of compliance by motorists especially given the huge increase on TfL roads. Mr Mustard knows that TfL have recently put cameras in locations which were previously not covered including the North Circular at Palmers Green which caught out a lot of drivers who had noticed the absence of a camera for many years. Clapton Common was another location with a new camera and a local motorist had a dozen PCNs there as the driver didn't bother getting out of the bus lane even when the all traffic lane was empty and drove up it several times before the first PCN arrived. Mr Mustard declined to assist. Another representative stepped up but at £40 a pop.

The really interesting part is the 20 boroughs where the number of PCNs has decreased which suggests that local residents have learnt and probably it is mostly visitors who get caught. Mr Mustard doesn't think that many bus lanes will have been removed as they tend not to be once installed.

Next, moving traffic, which will make your eyes water. 

Southwark Council - bus lane PCN template error

 

A short bus lane in Southwark Bridge Road

There are a few professional PCN fighters who link up in disparate loose ways. One such is Phillip Morgan and Mr Mustard has to raise his hat to him for his work on bus lanes in Southwark.

 

Council blunders simply never stop even when all they have to do is to copy some words out of the legislation.

 

It was Phillip who spotted Southwark's major blunder in that the words on their PCN were simply not correct thus rendering a PCN a meaningless piece of paper.

Here is a copy of the Freedom of Information response he was sent in August 25:

Full credit to Southwark Council for throwing in the towel (they had to be prodded a few times before they were forced to do this) but a news report elsewhere tells Mr Mustard that the contractor picked up the tab. If a contractor can swallow a hit of half a million pounds they are being overpaid for the services supplied?

There will doubtless be another blunder along soon.

The end. 

Councils need to watch out for enthusiastic amateurs - Philip Morgan in this case

Mr Mustard first encountered Phillip Morgan over a decade ago when Mr Mustard was new to 'parking tickets' (Penalty charge notices) having been given one for the wrong reason. Mr Mustard's thoughts, as a former civil servant and local government temp himself, was that councils wouldn't be doing much wrong. That naivety is long gone. Councils make lots of errors and have not stopped doing so for a decade. Sometimes they correct one error only to introduce a different one.

Parking, bus lane and moving traffic PCNs are all based on different laws and the minutia of the additional Regulations, Orders and Acts set traps for the unwary. For years there were only a couple of individuals who helped the public to fight back and the famous/infamous Barrie Segal has now retired from the fray.

There are now a dozen or more self taught experts who have little time for socialising being as they are, under the burden of hundreds of PCNs at any one time. Lots of them give their time for free on this website.

Until this year there was the choice at London Tribunals, the home of the independent adjudicators of having a postal hearing based on the papers alone (a bad a choice as the single justice procedure in the Magistrates Courts) or, if you really wanted to win, an in person hearing in Furnival St in the Chancery Lane area (the legal district of London) where you basically sat across the desk from the adjudicator and argued your case (techncially you assist the adjudicator to make his/her decision).

After the hearings were concluded & if another expert happened to be there on the same day and you both had finished you might repair to a local hostelry and toast your successess and drown your failures. Thus it was that Mr Mustard would sit and chat with Phillip and talk about PCNs and anything else in the world. Nowadays with all hearings by video there is less opportunity.

Sometimes experts don't agree and you try to dissuade them from their chosen course but all the experts are headstrong and likely to stick to their guns.

Phillip Morgan though was spot on when he noticed that Southwark Council's bus lane PCNs were issued under the wrong legislation.

Bus Lane enforcement in London came about with The London Local Authorities Act 1996 (as amended since then). The 2003 Act relied upon by Southwark is the primary legislation for alleged moving traffic contraventions (turning left where you shouldn't, stopping in yellow box junctions etc) and the 1991 Act whilst relating to traffic matters and driving penalties wasn't do do with bus lanes and was 5 years too early.

Phillip obtained the penalty income data using the Freedom of Information legislation:

The pedantic answer to Q1 could have been zero but that would have been a silly answer and just caused more work in dealing with the follow up reworded question.

The council was under the threat of a Judicial Review their hand and rather than spend tens of thousands on defending a legal action they wisely decided to refund everyone, a decision doubless helped by their contractor picking up the bill.

 

Mr Mustard thinks the contractor is APCOA, who are about to take over in Barnet as it happens. Mr Mustard will be looking out for their errors.

There is lots of profit in parking. The last published results for Apcoa Parking (UK) Ltd* showed turnover of £124,947,119 a gross profit of £33,982,300 and a profit before tax of £7,438,686 (*not sure if this is the correct APCOA identity but the underlying message is they aren't small and can afford to pay out half a million for a cockup). Mr Mustard wonders if councils generally are driving a hard enough bargain?

Well done Phillip.

The end. 

Power mad councils

 

It really doesn't need saying that St. John Ambulance is a charity and performs a most useful service at charity and other mass market events. They are a common and comforting sight.

So if they have strayed into a bus lane in an ambulance (and the camera at this location is cynically & deliberately set to only capture the final 10m but craftily not show the end of the lane) just don't send them a PCN and if the computer does so just cancel it when challenged.

Luckily Waltham Forest Council lashed up their evidence which didn't surprise Mr Mustard who has beaten them at the tribunal 21 times out of 24.

They aren't the only miserable council in London. The following tribunal decision was about a Barnet Council PCN.

When an adjudicator says a council should not have fought an Appeal that is strong criticism.

The end.

Chicken Run in Haringey

 

Mr Mustard reads random decisions of the independent adjudicators at London Tribunals. He didn't expect to find a Highways company in the register but there they were.

 

One wonders what Marlborough were thinking. The council has cctv, it clearly shows the vehicle stopped in the bus lane for >2 minutes and the driver and passenger do not reappear out of the Chick-King shop in that time. Why didn't Marlborough watch the cctv before starting their Appeal?

Had they done so they might have noticed that the cctv starts at 14:08 and so there isn't any evidence of them being in the bus lane at 14:07 (although they probably were) so had the council been put to proof by denying the alleged contravention, the council would probably have thrown in the towel.

Too late now. Too much fried chicken is bad for you and expensive. £130.

The end.

Havering - the dangerous council

Mr Mustard was asked to help a motorist who, when driving along perfectly legally was presented with a problem requiring instant action. The problem was three cars heading straight towards them and the only sensible option was to enter the bus lane to avoid a head on smash, probable serious injury and possibly death. Havering Council thought that deserved a PCN.

The only other realistic alternative was to stop within your lane but Mr Mustard would have done the same as the motorist as if in doubt, no matter how much you are in the right, you get out of the way of dangerous drivers.

Why did someone at Havering Council think this merited a PCN?

The process is that for a bus lane PCN you can make an informal challenge (although the right is not enshrined in law it is usually offered by councils in London). If that is rejected an Enforcement Notice is issued against which you make formal representations (they can be the same as the informal challenge).  Then you can go to Appeal in front of an independent adjudicator at London Tribunals if rejected.

Adjudicators are truly independent and do not have a financial interest in the outcome, which helps. Councils on the other hand know that if they reject challenges only 1% of PCNs end up at the tribunal. (Close to 100% of Mr Mustard's rejections end up at the tribunal! and 90% of those end in cancellation).

Outside London it is different, there is only one representation stage to the council.

The motorist had already sent in their own informal challenge and seen it rejected as follows:

Here is the first part of the formal representations which Mr Mustard wrote.

 It did not find favour with Havering.

You will note the complete absence of the full consideration which Havering claim to have made. Havering expect you to play chicken with oncoming traffic as they wrote when rejecting the informal challenge. The Notice of Rejection continued:

The Notice of Rejection was a nonsense. The Enforcement Notice had already been received and responded to. Given that recourse to the tribunal was offered the process as far as the council was concerned was over. Mr Mustard could have pointed out their error but their final line suggested this might well be a waste of time so instead an Appeal was duly started at London Tribunals which meant that Havering had to pay a fee of £25.55

The Appeal was based upon the procedural errors of the council. Three weeks passed and then Havering decided to not contest the Appeal and to cancel the PCN. Not that confident in their case then?

If you think you are correct stand up for your rights or ask Mr Mustard to do so on your behalf.

The end.

Barnet Council - losing track of time.

An interesting and worrying decision yesterday at the tribunal (Mr Mustard looks at random results when he has the time).

Hats off to J A Rattigan

It might have only been the one camera or it could have been all of them but this alleged contravention was a week after the clocks went forward so every single PCN had the wrong time on it and can be beaten. An honest council would go back and unilaterally cancel them all, and issue refunds, but somehow Mr Mustard doubts that will happen. This is why we need an ombudsman or similar who could direct an enforcement authority to behave morally and legally. There is no current mechanism to deal with this sort of error, it is up to each person and not everyone has Mr Mustard's willingness to fight petty officialdom.

End.

Barnet busted in a bus lane

 

Looking at the above image and deciding whether or not to issue a PCN for a bus lane contravention (always assuming a person actually looked at the footage rather than letting the computer automate the whole process) you would, as would any reasonable person, assume the car was in contravention (assuming the cctv was taken during the operative times of the lane). The person making the decision is probably in Dingwall (or another office of NSL) so will have no idea is behind the car as they would even have to look on a map to find the area and they know nothing about local traffic.

 

However, this was the view behind the car (cctv is sneakily set up to only cover the last section of a lane, the part most likely to be contravened).

Now you have a completely different view of the PCN question. The above photos have been borrowed from a PePiPoo post. The reason is to illustrate the next decision which is in a different part of the A5 and 3 months later. Clearly Highways should be telling the PCN issuing department (often simply referred to as the 'Parking service' although service is a misnomer) when a bus lane is partly closed (or the signs are obscured by building works, as below) and PCNs should not be issued. Mr Mustard will refer this topic to the relevant councillor.

Not a good day for Barnet Council burning £114 of our money and they gave Mr Chawla and Mr Wachal an unreasonably terrible time. It is an easy matter to check if a bus lane has roadworks going on alongside it.

Local authorities are required, at law, to be procedurally fair. To want to use the motorist's own photographs against them and to buttress the council's own case was to place them in an 'impossible position'. Had the council provided contemporaneous evidence of the bus lane signs, at the start of the lane, they would indubitably have disclosed the roadworks.

Here is the adjudication decision itself:

Costs awards are very rare but thoroughly deserved in this case.

Sadly, many motorists will have paid up in this situation, especially those with leased cars as bus lane PCNs in London cannot be transferred so the lease or hire company will probably just pay them.

End.

The story of a minor bus lane incursion

Mr Mustard has the pleasure to meet some of the people he helps to fight PCNs for, in this case a lady he will call Mrs Kind, who is 80 years old (indelicate to ask but sometimes it helps). Mrs Kind had been to visit a friend at Appletree Court which you can see in the photos below. For some reason, which she couldn't remember, she drifted into the bus lane (and given that there were no buses about no advantage was gained so there was no point) but the cars turning right and the people crossing the road may have influenced her choice of line.

A bus lane contravention is one of 'strict liability' 

and thus the question is whether or not you entered the bus lane and one wheel within it or even a mirror overhanging the lane is enough. There is the legal principle of 'de minimis non curat lex' to consider (the law does not concern itself with trifles) which some adjudicators would apply in this case, but others wouldn't do so, that is a question of interpretation of the law which is entirely within the gift of the particular adjudicator.

In London the motorist gets three opportunities to contest a bus lane PCN.

 

The first when the Penalty Charge Notice arrives (although this is not an opportunity required by law, the challenge is informal).

The second when the Enforcement Notice arrives.

The third when the Notice of Rejection arrives.

Mr Mustard duly challenged the PCN, he was in succinct mode.

The incursion into the bus lane was too trivial to warrant a PCN.

 

It was rejected.

 

Once the Enforcement Notice was received,the formal representations were made. You can and should, make the same challenge as before, unless there is something newly thought of to add.

The incursion into the bus lane was too trivial to warrant a PCN.

The formal Notice of Rejection contained the following reasoning:

NSL wrote that response based upon outline instructions from an employee of Barnet Council. What it didn't properly consider was the argued triviality. The rejection is based upon a circular logic, triviality is irrelevant because the contravention occurred, but in order for there to be a trivial contravention there must have been a contravention. The council is being asked to exercise its discretion and should explain why it won't duly exercise discretion, the obvious reason being they would like £130 of income.

Mr Mustard wasn't worried, he hoped to find a sympathetic adjudicator, and so he started an Appeal to an independent adjudicator at London Tribunals. He was still saving his words.

Barnet Council ploughed blindly on. They produced the Evidence Pack for the adjudicator, containing the arguments and documents of both parties. The case summary contained the following:

but the question of whether the council could prove it had considered exercising its dicretion, which was not supported by any evidence, was moot as the council made a technical blunder, they failed to file the evidence in time, a week before the hearing being specified at law.

Mr Mustard didn't bother filing the usual skeleton argument but confined himself to a preliminary point.

The cover sheet for the Evidence Pack discloses that it was sent to the Appellant on 9 June relating a 15 June hearing.

It was held in the below case, by the now Chief Adjudicator, that service filed after the 7 day deadline is inadmissible and so the same decision should be made in this case.

The in person hearing was short and basically the council's case was thrown out.

Mrs Kind lived up to her name and made a donation to the North London Hospice. That would normally be the end of it, another line in Mr Mustard's long spreadsheet of wins but he was vexed by something the council said in the formal rejection, which was:

'is not an excuse to flout'

It is only today that Mr Mustard is also vexed by the use of the word 'excuse' but he was previosuly exercised by the use of the word 'flout' which as everyone knows requires a deliberate act. Mrs Kind was probably slightly distracted on having just left her friend (and she looked to be driving safely enough in the cctv, she also parking well outside Mustard Mansions).

Mr Mustard decided therefore to have some fun (his version thereof) and to make a point. He made a Subject Access Request.

 

Please provide me with the evidence held by the council, or the agents acting on its behalf and in its name, that the minor incursion into the bus lane was intentional.

The first response was inadequate so he emailed again.

I asked one simple question.

You have kindly sent me ‘everything’ about the PCN. I now have to spend time considering many documents.

 

Do you know which one contains the answer to my question, if any of them do?

 

There was silence so Mr Mustard emailed again (persistence pays).

My follow up email of 22 July has not been responded to.

I suspect that the evidence you sent me does not contain the information I requested (which was for just one piece of information and didn't merit sending me 22 documents including photographs which clearly wouldn't have contained the answer) but it really isn't for me to go on a hunt for the response, it is for the council to explicitly supply it.

I further suspect that the information I requested doesn't exist within the council's files but whether I am correct in that supposition or not isn't relevant, you must either supply the data or tell me that it does not exist.

I look forward to hearing from you.

This time he got a proper answer.

As you have pointed out, the word flout indicates that an individuals actions are intentional and while CCTV footage shows the vehicle partially contained within the bus lane for a period, it is not possible to gauge whether the driver did this intentionally.  

Definitive proof of intention does not exist. It is evident that the officer concerned should have avoided using such terminology.

 

Mr Mustard has thanked the data offcier for the straightfoward response.

 

Now that just leaves the question of how the word 'flout' was chosen?

 

Was it simply a bad choice of word by an employee of NSL who isn't paid a fortune? (perhaps but probably not).

Does it hint at the way in which employees dealing with PCNs think of the public, guilty as charged? (oh yes)

Does it tell us that outsourcing leads to lower quality control? (definitely yes).

Does it speak to a lack of supervision at NSL? (possibly).

Does it speak to a lack of training at NSL? (possibly).

Mr Mustard's hope is that by asking the Subject Access Request and presuming that a member of the Barnet Council management team sees all such requests, that a conversation has taken place between the management teams at NSL and Barnet Council and that no such similar letter will be sent in the future.

Just to make sure, Mr Mustard will send a copy of this blog to the councillor charged with responsibility for this area and suggest that a different way of thinking needs to go on, one that is less interested in blame or the financial outcome and which is based on fairness.

The end.