17 August 2017

Bus fare?

Mr Mustard keeps an eye on decisions at London Tribunals and looks at anything out of the ordinary. This decision, number 2170244830, was unusual:

I have to deal with appeals against a large number of PCNs issued by this Enforcement Authority to a number of the Appellants’ buses, alleging in each case that the vehicle entered and stopped in the box junction at the junction of Castelnau and Trinity Church Rd. when prohibited. Mr. Claridge attended on behalf of the Appellants with Mr. Johnson representing the Enforcement Authority. I am grateful for the assistance each provided.

Mr. Claridge does not dispute in any of the cases that the bus entered and stopped in the box junction but he criticises the particular box junction which he argues does not serve the purpose of facilitating traffic turning right onto Castelnau. He states that it is company policy to require their drivers to pay penalty charges or face disciplinary action. When the Appellants began to receive PCNs from this location they were paid as usual. However, given the large number of PCNs received, and having spoken to their drivers and made their own assessment of the particular box junction, they took the view that enforcement was unfair. Mr. Claridge points out that there is a bus stop beyond the box junction which services up to 50 buses during morning rush-hour. He says that 8 of these buses terminate here and therefore tend to need longer than at a through-bus stop. Mr. Claridge states that the bus stop is capable of serving 3 buses at a time but that the design dictates that the driver of the first bus must stop short of the end to enable passengers to board or alight. He says that when 2 buses are stopped at the bus stop there is insufficient remaining available space for a third bus to clear the box junction. He points out the box junction follows an ‘at any time’ bus lane and argues the only vehicles in the inside lane should be buses. He indicates that he has had negotiations with representatives of the Enforcement Authority and Transport for London with a view to relocating the bus stop.

I initially considered a group of 46 cases which relate to this box junction. In each case the enforcement camera DVD appeared to show a clear example of the contravention, with the bus entering the box junction and having to stop wholly or partly in the box junction due to the presence of stationary vehicles. In 24 cases the situation presented the classic problem identified by Mr. Claridge, with 2 buses stopped at the bus stop leaving insufficient space for the third to clear the box junction. In the remaining cases there was either one bus or another type of vehicle which prevented the Appellants’ bus clearing the box junction.

I have had the opportunity to question Mr. Claridge and consider his submissions and I am quite satisfied these appeals are advanced in good faith. I accept that for some reason the Appellants’ drivers find this box junction particularly difficult to negotiate. However, I have not identified anything unusual about this box junction in any of the enforcement camera footage. I am satisfied that the box junction is substantially compliant, clear and adequate and therefore enforceable.

I am not satisfied that the Appellants have established anything in any of these cases which goes beyond mitigation. The Enforcement Authority may cancel a PCN as a matter of their discretion but Adjudicators have no power to direct cancellation on the basis of mitigating circumstances.

Having considered all the evidence I am satisfied that the contravention occurred and that the PCN was properly issued and served. I am not satisfied that any exemption applies.

The penalty charge in each of these cases has always been £130. The Enforcement Authority must accept half of this amount in full and final settlement if received within 14 days beginning with the date of the PCN. Outside this period the Enforcement Authority may accept the reduced amount in full and final settlement but this is entirely a matter of their discretion. An Adjudicator has no power to direct that they do so. It follows that in this case the Enforcement Authority are entitled to insist on payment of the full penalty charge. However, the Enforcement Authority have indicated that they are in each of these cases prepared to accept the reduced amount of £65 in full and final settlement. This must be paid within 21 days of today or the full penalty charge will fall due.

Mr Mustard doesn't see anything to quibble over with the decision.

Mr Mustard has often wondered if buses just weren't given yellow box junction PCN as he had rarely seen obviously bus company names in the tribunal register. Well, that has all changed now. Don't be at all surprised if other boroughs, their parking manager having spoken to the Richmond manager at a quarterly meeting, decide to go after bus companies for easy money in order to improve road safety and traffic flow.

This has cost the bus company 46 * £65 = £2,990

Mr Mustard observes the following:

1. Given that the yellow box is within traffic lights it probably isn't needed. With suitable phasing both roads could get a fair share of the available road space.

2. It is harder for a bus, about 11m in length, to get clear of a yellow box, but in this case they have a bus lane in advance of the box so do not have fight with more nimble cars for the exit space.

3. Similarly, if the box waited short of the box they would not be in conflict with other waiting traffic, which is in lane 2.

4. The road is the route of the 33, 72, 209 & 485. One of them seems to terminate there on 8 occasions during the rush hour. The location is a bus stop not a bus stand so buses should not be parked there, only stopped for passengers to board and alight, for up to 2 minutes. (Any bus experts are welcome to correct this if wrong).

5. As can be seen from the photo the alighting point has not been placed at the end of the bus stop but further along. That needs to be changed.

The trouble with discretion being entirely at the judgment of the enforcement authority who will receive the income if they reject your representations is
'Nemo judex in causa sua' which means 'no-one should be a judge in his own cause." It is a principle of natural justice that no person can judge a case in which they have an interest. The rule is very strictly applied to any appearance of a possible bias, even if there is actually none: "Justice must not only be done, but must be seen to be done". This wasn't. As the problem became apparent it would have been the mature approach for Richmond Council to have sat down with the bus company and resolved the matter without penalty.

As it happens Mr Mustard has just sorted out his own bus related yellow box PCN in Barnet. Here is the scene.

The black car, fully in the box, stopped where they were thus leaving the junction clear but could, in Mr Mustard's opinion have cleared the box so they chose not to, they were not stopped due to the presence of a stationary vehicle, the bus. The PCN was at the charge certificate stage as the PCN itself had not been received, i.e. £195 was being claimed. If you look like getting completely stuck, take a left turn down Ravensdale Avenue instead, or turn right into Avenue Road, or even reverse out, do a u-turn, crawl forwards at half a mile an hour, anything, just don't sit there like a sitting duck.

Mr Mustard was going to go down the witness statement route at the TEC, to obtain a fresh PCN, once the Order for Recovery had been issued, but instead he looked up the PCNs which had been issued at that location on the day in question, as Barnet Council publish them without personal data. There wasn't a PCN for the bus (based upon the contravention time) which was fully in the box. The parking manager tells Mr Mustard he likes to be fair. Mr Mustard suggested that sending a PCN to the car but not the bus was not fair. The PCN was cancelled, whether for fairness or because arguably the car did not commit a contravention, was a source of no concern to Mr Mustard. The PCN has been cancelled which has saved both sides a whole load of work and the council may have saved themselves a £30 tribunal fee.

Mr Mustard has no objection to Barnet Council not issuing PCNs to the buses who are trying to get to their stop as their exit is usually free and they will otherwise lose out to vehicles coming out of Ravensdale Avenue

Yours frugally

Mr Mustard

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