R Nottingham City Council v Bus Lane Adjudicator Mohammed Sattar and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 09 March 2017 |
| Neutral Citation | [2017] EWHC 430 (Admin) |
| Docket Number | Case No: CO/4348/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 March 2017 |
[2017] EWHC 430 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
Mrs Justice Lang DBE
Case No: CO/4348/2016
and
Mungo Wenban-Smith (instructed by Nottingham City Council) for the Claimant
Ruth Stockley (instructed by the Traffic Penalty Tribunal) for the Defendant
The Interested Parties did not appear and were not represented
Hearing date: 8 February 2017
Approved Judgment
The Claimant (hereinafter "the Council") seeks judicial review of the decision of the Bus Lane Adjudicator ("the Adjudicator") dated 31 May 2016, dismissing the Council's application for a review of the decision of Bus Lane Adjudicator Garbett, dated 8 April 2016, which allowed an appeal by the First Interested Party ("Mr Sattar") against a penalty charge notice ("PCN") for driving in a bus lane, issued by the Council on 26 November 2015.
Both Adjudicators found that the "Pedestrian Zone" road signs, based on diagram 618.3 in the Traffic Signs Regulations and General Directions 2002, prohibiting vehicles "Except buses at any time and for permit holders U1 7 pm to M'night and M'night to 7 am" did not provide adequate information, as required by regulation 18 of the Local Authorities Traffic Orders (Procedure) (England and Wales) Regulations 1996 ("LATOR 1996").
Permission to apply for judicial review was granted by Green J. on 2 November 2016.
The circumstances in which the PCN was issued
On 26 November 2015, the Council issued a PCN to Mr Sattar pursuant to "The Road Traffic Regulation Act 1984, sections 1,2,4,9 and 14 (as amended) and the Transport Act 2000 section 144(1)(2) and (9) as amended." It read (so far as is material):
"Date of contravention: 23/11/2015
Date Issued & Posted: 26/11/2015
Date of Service: 30/11/2015
Nottingham City Council believes that a Penalty Charge of £60 is payable for the following alleged contravention: Code 34: Being in a Bus Lane (as defined in s.144(5) Transport Act 2000 (as amended).
The vehicle BU51TFA was seen on Shakespeare Street Bus Gate Westbound, Nottingham at 17.19. The alleged contravention was noted by ANPRCAMERA…"
Mr Sattar was advised of his right to make representations against the PCN on the grounds set out in the Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005 ("the Bus Lane Regulations 2005").
The Council's internal "Case Status Report" drawn up subsequently on 19 February 2016 stated:
"Unmanned camera situated on Shakespeare Street, near to the junction with Goldsmith Street, observing traffic heading in a westerly direction through the 24 hour bus gate. Unauthorised vehicle proceeded into the section of Shakespeare Street from the direction of Mansfield Road, beyond the Pedestrian Zone signs into the area where traffic is restricted to buses at any time and for loading vehicles 7pm to 7am with a permit from the University, and was recorded by the camera in the bus only street and proceeding through it in the direction of Goldsmith Street.
Shakespeare Street, from its junction with Goldsmith Street, where it passes between the university buildings reopened as a 24 hour bus gate from 28 th September 2015 with access to loading vehicles which have a permit issued by the University. This bus only street is monitored from either end by CCTV cameras."
Mr Sattar, who was a taxi driver carrying a passenger at the relevant time, submitted representations asking for the PCN to be cancelled on the grounds of an emergency. He said he had entered the bus gate, acting as a "good citizen", because he thought he saw an ongoing assault. However, as he got closer, he realised that two people were merely play fighting, so he drove on.
The Council rejected his representations in a letter dated 5 January 2016.
The appeal to the Bus Lane Adjudicator
Mr Sattar appealed to the Bus Lane Adjudicator, under regulation 14 of the Bus Lane Regulations 2005, and the appeal was heard by Ms Garbett on 8 April 2016. She did not accept Mr Sattar's explanation for entering the Shakespeare Street bus gate. However, she allowed the appeal on the ground that the signage did not provide adequate information of the bus gate restriction.
Adjudicator Garbett's findings on the signage were as follows:
"…. the entrance to the Shakespeare Street bus gate westbound was signed with two Traffic Signs Regulations and General Directions 2002 (TSRGD) diagram 618.3 signs varied to include permitted variants 2 and 4 along with two indications of time "7 PM to midnight, midnight to 7 AM" in relation to permitted variant 2 and "at any time" in relation to permitted variant 4. Those signs are sited on either side of the carriageway."
"Some distance before the entrance to the bus gate, which Mr Radford confirmed was some 100 m before the entrance, the Council have installed a blue sign informing motorists of "24 hour bus lane enforcement on Shakespeare Street"."
"….the bus only restriction does apply at all times with an exemption for certain permit holders at certain times of the day. Although the signs are sited on either side of the carriageway and a driver might be aware that they were not permitted to enter a pedestrian zone which would be a moving traffic offence, I find that it would be highly unlikely that a motorist would understand from this signage that they were about to contravene a bus gate. I accept that there is blue bus lane signage in advance of the entrance to Shakespeare Street in the form referred to above, however as Mr Radford readily accepted, this is situated some 100 m before the entrance to Shakespeare Street and therefore is unlikely to be in the mind of the motorist as they enter the bus gate."
Adjudicator Garbett agreed with two Decision Notices by other Adjudicators 1 concerning the Council's signage of bus lanes/bus gates by pedestrian zone signs (diagram 618.3), which held that it was not in accordance with the statutory guidance issued by the Secretary of State for Transport in the Traffic Signs Manual 2008.
Review of Bus Lane Adjudicator's decision
The Council requested a review under regulation 23 of the Bus Lane Regulations 2005, on the grounds that the interests of justice required a review.
The review was conducted by another Bus Lane Adjudicator (Mr Solomons) on 31 May 2016. It was not a re-hearing, and his powers were similar to those of the Administrative Court in a claim for judicial review.
The Adjudicator upheld Adjudicator Garbett's decision, holding:
"….These signs did not comply with Departmental Guidelines (as set out in the TSM), either as to the signage to be used for a bus lane or as to the circumstances suitable for the establishment of a Pedestrian Zone. The adjudicator clearly saw no good reason for finding that they provide adequate information as to the bus lane restriction which the council seeks to enforce and I see no reason to interfere with that finding."
Grounds for judicial review
The Council's grounds of challenge were that the signage used by the Council was permissible under the regulatory framework and did make it reasonably clear to any road users what action was expected of them, as required by regulation 18 of LATOR 1996. The Adjudicator applied the wrong tests under regulation 18, and reached a decision that was Wednesbury unreasonable i.e. no reasonable adjudicator could ever have reached such a decision.
The regulatory framework
By virtue of section 121A(3) of the Road Traffic Regulation Act 1984 ("RTRA 1984"), the Claimant is the traffic authority for all roads in Nottingham for which the Secretary of State for Transport is not the traffic authority.
Pedestrian Zones
A Pedestrian Zone is defined in the Traffic Signs Regulations and General Directions 2002 ("TSRGD 2002"), at regulation 4, as:
"An area –
(a) which has been laid out to improve amenity for pedestrians; and
(b) to which the entry of vehicles is prohibited or restricted."
The Traffic Signs Manual 2008 gives traffic authorities guidance on Pedestrian Zones:
"11.1… Pedestrian zones are generally areas such as shopping streets where pedestrians will normally predominate and have full use of the width of the road, either at all times or at certain times of day. The roads may be fully paved for pedestrians or comprise a carriageway with separate footways."
"11.2 ….in most cases some form of access will be required. This might be for deliveries, disabled badge holders, buses etc. The pedestrian zone might operate for part of the day with or without exceptions…"
Unauthorised vehicle entry into a Pedestrian Zone is a moving traffic offence which is only enforceable by the police and the magistrates' courts in criminal proceedings. Section 73 and Part 4 of Schedule 7 to the Traffic Management Act 2004 contain powers to enable local traffic authorities to enforce contraventions of certain moving traffic offences by way of civil penalty. They specifically include entry to a pedestrian zone contrary to a diagram 618.3 sign. Through a series of London Local Authorities Acts, London authorities have been given powers to enforce pedestrian zone moving traffic contraventions. However, to date, no such regulations have been made bringing those provisions into force outside London. Consequently, it is only English authorities outside London that do not currently have the power to enforce such contraventions. Instead, they remain subject to criminal enforcement by the police and ultimately the magistrates' courts. Moreover, unlike a bus lane contravention, unauthorised entry to a Pedestrian...
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