Adjudicator s Decision

Transcription

1 Adjudicator s Decision Stephen Sutcliffe and Nottingham City Council Penalty Charge Notice NG Appeal allowed on the ground that the alleged contravention did not occur. I direct the Council to cancel the Penalty Charge Notice and Notice to Owner. Reasons The Penalty Charge Notice (PCN) is dated 6 April 2016 and was issued by post in respect of a contravention on 2 April 2016 at 12:19 relating to vehicle DA07 AMN in Shakespeare Street bus gate Westbound for being in a bus lane. The appellant, Dr Stephen Sutcliffe, attended a personal hearing in Liverpool. Nottingham City Council (the council) elected not to take part, but to rely on their CCTV footage, photographs and written submissions. There have been lengthy submissions from Dr Sutcliffe and from the council, but the issues raised by Dr Sutcliffe can be summarised as follows: - 1. The contravention is incorrect as being in a bus lane cannot apply with the signage in place which represents a Pedestrian Zone. 2. Shakespeare Street is a restricted access street, not a bus lane. The TRO lists 7 exemptions and was then extended to include any vehicle with a valid permit. 3. The signage is not adequate to inform road users of the restriction. 4. Because Shakespeare Street is not a bus lane, the use of camera enforcement was unlawful. 5. The route is not used by regular bus services. 6. The use by the council of the Nottingham police logo in their printed letter head is misleading and prejudicial. Page 1 of 7

2 Dr Sutcliffe explained that he is not familiar with Nottingham and had visited the city to attend a wedding. He understood that he should park in a car park which was in the Shakespeare Street area but, until he got there he was unsure of the precise location and had difficulty finding his way. On his approach, he turned right into Goldsmith Street. He saw no through road signs, but continued as he was unsure whether the car park was in that road but before any blockage. Dr Sutcliffe said that he then saw clear signs marking a tram only section of Goldsmith Street, so executed a three point turn and then turned right into Shakespeare Street. He saw no signs indicating he could not proceed so drove along that road and found the car park. Once he had parked in the car park, Dr Sutcliffe realised that he was at the wrong location for the ceremony, so returned to his car and drove out of the car park again and it was during this section of his journey that he was captured on camera driving along what the council say is a bus only section of Shakespeare Street. Dr Sutcliffe emerged from the car park and turned left into Shakespeare Street, entering the disputed area of the street a short distance along that road. In response the Council said that Dr Sutcliffe s car was captured on CCTV driving along the bus only section of Shakespeare Street. The council submitted that there is a traffic regulation order in place and that the restriction created falls within the definition of a bus lane. They further submitted that the signs used at the entrance to the relevant section of the street are a permitted variant of a sign to diagram of the Traffic Signs Regulations and General Directions 2002 (TSRGD). The council also mentioned the advance warning signs which they submitted should have put Dr Sutcliffe on notice to expect the restriction. The council summarised their submissions with regard to the signs by saying: - Page 2 of 7

3 I deal firstly with the issue of whether this is in fact a bus lane as other issues raised by Dr Sutcliffe stand or fall on this point. Section 144 of the Transport Act 2000 states (4) A bus lane contravention is a contravention of any such provision of (a) A traffic regulation order (b). (c). (5) and an area of road is, or forms part of, a bus lane if the order provides that it may be used (a) only by buses (or a particular restriction of bus) or (b) only by buses (or a particular description of bus) and some other class or classes of vehicle traffic The judgement of the High Court in Oxfordshire County Council v The Parking Adjudicator (2010) EWHC894 (Admin) includes the following The Transport Act 2000 envisages a stretch of road remaining a bus lane although classes of vehicles other than buses, pedal cycles and taxis are permitted to use them.. It is pointed out that this is wider than the definition in Regulation 23(2) of the TSRGD. Section 142 (3) of the Road Traffic Regulation Act 1984 provides Page 3 of 7

4 References in this Act to a class of vehicles or traffic shall be construed as references to a class defined or described by reference to any characteristics of the vehicle or traffic or to any other circumstances whatsoever. The relevant Traffic Regulation Order (TRO) is the Nottingham City Council (Shakespeare Street, Nottingham) (Bus only street Prohibition of Driving Amendments) Traffic Regulation Order The Order is stated to have been made under the Road Traffic Regulation Act 1984 and the Transport Act Part 2 Section 8 of the Order is headed Prohibition of Driving (Bus Lane) 11(i) Save as provided in this article, no person shall, except with the permission of a police constable in uniform, cause any vehicle to be in and/or proceed in any of the lengths of roads specified in column 2 of Schedule 8 to part 2 of this Order during the time specified in column 4 of that schedule. (ii) Nothing in paragraph 11 (i) of this Article shall apply to any vehicle which is of one or more of the categories specified in column 3 (iii) Nothing in paragraph 11(i) of this Article shall apply to (a) (b) (c) a Pedal cycle a bus a tramcar When it is indicated on the relevant sign.. Schedule 8 refers to 2 sections of Shakespeare Street. Column 4 states that the designation is to apply at any time and there are 6 exemptions, listed in the schedule by reference to appendix A which include emergency vehicles, security vehicles and local authority vehicles. Between 7pmmidnight and midnight-7am there is also an exemption for restricted access permit holders. The TRO therefore creates a prohibition on vehicle entry, subject to the listed exemptions which include buses and tramcars. I am satisfied that the listed exemptions, including permit holders, fall within the definition of a class of vehicle contained in section 142 (3) above. Having regard to paragraph 54 of the judgement in the Oxford case, the TRO provides that the designated section of the road may be used only by buses and other specified vehicles. It therefore appears to satisfy the requirements of Section 144 (5) of the Transport Act Page 4 of 7

5 I am therefore satisfied that the relevant section of Shakespeare Street is a bus lane. It follows from this that the council are entitled to use camera enforcement in accordance with Regulation 3 of the Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005 and that being in a bus lane is the correct contravention. However, Regulation 18 of the Local Authorities Traffic Orders (Procedure) (England) Regulations 1996 (LATOR) requires the council to provide adequate signing about the terms of the restriction. The council have provided details of the signage in place, both at the start of the relevant section of the street and in advance of the street. In doing this, they appear to have overlooked the fact that Dr Sutcliffe would not have seen any of the advance signage for drivers travelling westbound along Shakespeare Street as he emerged from the car park and would not have passed any of the signs. It is the case that Dr Sutcliffe did travel the other way along the street, but the council cannot rely on signage for traffic travelling in the opposite direction and in any event, as he travelled from Goldsmith Street, it is possible that he would not have seen the advance signage in that direction either. I therefore take into consideration only the signs at the start of the bus only section of the street. Here the council have elected to use sign 618 which has been placed on either side of the carrigeway. This is the sign designated for a pedestrian zone and is pictured below: - The restriction which the council are seeking to enforce is that of being in a bus lane. To do so, in accordance with regulation 18, they must show that the signs are adequate to inform drivers that there is a bus lane restriction in place. This is a sign which will be read from a moving vehicle and I am not satisfied that any driver, passing this sign would have any awareness that they were entering a Page 5 of 7

6 section of the road where only buses are permitted. This sign has been designed to let drivers know that they are entering a pedestrian zone. Those words appear at the top and are clearly visible. Under those words a 619, or Flying motor cycle sign is incorporated into the sign and this too would be reasonably clear. The first reference to buses appears below at the beginning of a section which reads Except buses at any time and for permit holders U1 7pm to M night M night to 7am. I question whether any driver, who is taking reasonable care as to what may be in the road ahead would be able to read any part of that wording. There is no blue roundel, or bus symbol. There is no marking on the road surface to alert drivers and whilst there is no strict requirement for this, it may have made the position clearer. Use of the 619 sign to designate a bus only road was approved in the Oxford case and indeed the traffic signs manual recommends its use where there are exemptions other than buses. However, in Oxford, the signs used were the basic 619, flying motorcycle sign, with the words Except buses below, creating a much simpler sign which could be read by drivers of moving vehicles. I am not satisfied that the much more complex 618 sign used in Shakespeare Street, is adequate to bring the applicable restriction to the attention of drivers. Even had Dr Sutcliffe passed the advance warning signs, I note that there is no reference in them to buses. Indeed, the signs appear to relate only to the traffic prohibition and I question whether they were put in place before the council decided to permit buses to use that section of road. As I have found that the signage was not adequate, it follows that I find that the contravention did not occur I also have some concerns about the designation of this section of the road as a bus lane, if in fact no buses use it while carrying passengers. The council have referred to the use by a Unite Students bus service, but Dr Sutcliffe brought evidence to the hearing that the Unite bus route does not include this road. This leaves a possible school bus and buses run as a replacement for trams. As the council were not present to respond to Dr Sutcliffe s representations about the Unite buses or to give more information about the other services, I make no findings but the council should look at the proportionality of having a bus lane with such limited use. It could be suggested that it has been created, merely so Page 6 of 7

7 that they can enforce breaches under the b us lane regulations and need not rely on the police to enforce breaches of the pedestrian zone restriction. I also have sympathy for Dr Sutcliffe s comment as to the use of the police logo. The council are dealing with civil enforcement, not enforcement through the criminal law. One interpretation of the use of the logo is that a failure to pay the penalty charge may result in police action, which would not be the case. As I have found that the alleged contravention did not occur, I allow the appeal, which means that Dr Sutcliffe is not required to pay the penalty charge. Jill Yates Adjudicator 22 July 2016 Page 7 of 7