Appealing to the bus lane adjudicator
Appealing To The Independent Bus Lane Adjudicator
If your representation or formal appeal is refused by the issuing authority you can appeal to the independent Bus Lane Adjudicator.
The Local authority will send you a notice of appeal with their letter of rejection. You can use this form to appeal to the independent Bus Lane adjudicator. This will involve the issuing authority in a lot of work because they will have to produce a large amount of evidence including an “Authorised officer witness statement” They will also have to produce a case summary, copies of the penalty charge notice, enforcement notice, all other correspondence, colour images of the offence and ideally a video etc. What’s more if you serve notice on the council at least 3 days before the hearing that you require the officer who signed the documentation to attend the hearing because you dispute the evidence (which they must send you at least 7 days before the hearing) then they must attend if they wish to proceed with the appeal! This right of the motorist must be included on the notice of rejection that the council must send you if they do not accept your appeal to them. If this is not stated then the notice of rejection is invalid. The officer must then attend a hearing and can be questioned. What’s more whilst he is at a hearing he will not be issuing other penalty charge notices! It may be that the enforcing authority drop the case rather than send a representative.
When submitting your appeal, you should:
- explain your reasons fully and carefully. There is no need to vent your anger rather simply state the facts.
send clear copies of any relevant documents including photo’s, plans , correspondence, witness statements etc., keeping the originals;
- make sure the adjudicator RECEIVES your representations within 28 days. They may disregard representations received later. They may consider late representations, but do not have to. We would advise you to ensure that they receive your representation within the 28 days.
The grounds for appeal are the same as when making a formal appeal to the council.
there was no breach of the bus lane order/regulation;
This is the ground upon which most appeals are made for example, the vehicle was not in a bus lane during its hours of operation/ the restrictions were not properly signed or lined, the vehicle was exempt from the restrictions, it was making a permitted left turn or the penalty exceeded the amount applicable etc.
the recipient was not the owner of the vehicle at the material time;
For example, the vehicle was sold before or bought after the contravention occurred. You MUST supply the full name and address of the buyer or seller if you have it. Note: under the London Local Authorities Act 1996 the owner, not the driver, is normally liable for a penalty charge.
the person in control of the vehicle at the material time was in control of it without the owner’s consent;
For example, the vehicle was driven in the bus lane after being stolen.
- the police are taking action
Instead of the local authority imposing a civil penalty under their powers, the police are taking criminal action against the driver at the time of the alleged breach. This ground applies if the driver of the vehicle has received a Fixed Penalty Notice or a Notice of Intended Prosecution from the police for the same breach.
Please note that the adjudicator cannot consider compassionate grounds himself but he may be able to ask the local authority to reconsider compassionate grounds if he does not think that they have discharged their obligation to do so.
You will need to decide whether you want your appeal decided on a postal, personal or telephone basis.
Postal Appeal – If you have asked for a postal decision, you will be sent a formal acknowledgement that your appeal has been received and registered and you will be notified of the date on which your appeal is due to be decided. The Adjudicator will consider the appeal based solely on the written evidence which both you and the council supply. A written decision will then be sent to you and the council, normally within a week of the case being decided.
Personal appeal – If you want a personal appeal, you should choose one of the appeal venues listed on the “Notice of Appeal” form. You will be sent a formal acknowledgement that your appeal has been received and registered. The adjudicator’s staff will schedule it for the next appropriate hearing usually at the venue of your choice and will give you at least 21 days’ notice of the precise date, time and venue location. Personal hearings normally last about 20 minutes and are held in premises independent of the local council. You may choose to have your personal appeal heard in any of the venues listed on the “Notice of Appeal” form, irrespective of where the PCN was issued.
Hearing venues are generally well known buildings in the community such as libraries, leisure centers or hotels. They generally have excellent access for people with disabilities although it is often helpful for an appellant to advise the adjudicator’s staff in advance if special facilities or access is likely to be necessary.
Personal appeals are relatively informal in nature. Those attending usually include the Adjudicator, the appellant and the council representative. In common with most other legal proceedings, however, bus lane appeals are open to the public and, although rare, anyone may attend as an observer. The council may rely on their written submissions alone or may choose to send a representative, either to take part or simply to observe.
You will have the opportunity to put your case to the Adjudicator and to answer any questions he or she puts to you. Although those attending are not required to give their evidence under oath, all parties are reminded of their duty to tell the truth at all times.
You may choose to bring a relative or supporter with you to a personal appeal. Witnesses may also attend. Due to the informality of the proceedings, legal representation is seldom necessary.
At the end of the hearing, the Adjudicator will almost always give his or her decision. This decision is confirmed in writing to you and the council, normally within ten days.
Telephone Appeal – If you have asked for a telephone appeal, you will be sent a formal acknowledgement that your appeal has been received and registered. The adjudicators staff will schedule a hearing, taking into account your preferred time and will give you at least 21 days’ notice of the precise time and date of the telephone hearing. Telephone Hearings last about 20 minutes and take place by means of a telephone conference call. If you choose a telephone hearing then you will be contacted on the telephone number provided by you on your ‘Notice of Appeal’ form.
Although the hearing takes place over the telephone rather than at a hearing venue, the conduct of the hearing is similar to that in a personal hearing.
In all cases the council will be notified that an appeal has been lodged and will be given 21 days to submit their evidence to the Adjudicator. At the same time they must submit a copy of this evidence to you, as the appellant. You may be surprised but quite often the council or other enforcing authority do not provide any evidence at all nor do they even contest the case.
When they receive a “Notice of Appeal”, the adjudicators staff will make some basic checks and if everything is in order it will be registered as a formal appeal.
After the Decision
After the Adjudicator has made his or her decision, confirmation will be sent to the appellant and the council. Normally, the Adjudicator’s Decision will have one of two outcomes:
1. That the appeal is allowed and the appellant is not liable to pay the penalty charge.
The Adjudicator may give other directions to the Council as may be appropriate, including a direction to repay any part of the penalty already paid.
2. That the appeal is refused and the appellant is liable to pay the penalty charge.
What Happens Next?
If you win your appeal and your liability for the penalty charge is cancelled, this should be the end of the matter. If you lose your appeal, you must pay the charge due to the council within a period of 28 days beginning with the date that the Adjudicator’s written decision was sent to you. If you fail to do so, the council will be entitled to continue enforcement proceedings against you.
The Adjudicator has the power to consider an application for costs from either party. However, an award of costs is extremely rare and the sums involved are modest.
Review of adjudicator’s decision.
Whilst there is no right of appeal against the Adjudicator’s decision it can be reviewed on several grounds and a review will only be granted if an Adjudicator is satisfied that one or more of the following applies. A review is NOT simply an opportunity to appeal again. You cannot ask for a review just because you disagree with the Adjudicator’s decision.
Grounds for seeking a review.
The decision was wrongly made because of an error by the adjudication services administrative staff;
- you failed to appear or be represented at a hearing for some good reason;
- there is new evidence and the existence of this could not have been reasonably known of or foreseen before the decision;
- the interests of justice require a review. You should note that an Adjudicator’s findings of fact are normally regarded as final and will only be overturned if they are plainly incompatible with the evidence that was before the Adjudicator. The mere fact that you disagree with these findings is not a ground for review.
Please note that a review can only be granted if an Adjudicator is satisfied that one or more of the items above applies.
If you wish to apply for review, you should write to the Head of the Parking and Traffic Appeals Service at the address given on your decision letter within 14 days of the decision being sent to you or handed to you at the hearing.
If requesting a review you must:
set out in full your grounds for asking for a review; and
- say which of the items above you claim applies and why; and
- if you are writing outside the 14 days, explain why. The Adjudicator will not accept an application out of time unless there is good reason for the delay.
- request a personal hearing of your application if you want one – if you do not, the application will be decided on the papers only.
Unless you attend a personal hearing, the decision will be posted to you.
B. Judicial Review
If an Adjudicator interprets the law incorrectly the decision can be reviewed in the High Court by a procedure called Judicial Review. If you wished to contest a decision using this procedure, it would be wise to get legal advice first. You must file the claim in the Court promptly and normally not later than 3 months after the date of the decision.
Costs – The present system regarding the awarding of costs is tilted very much in the favor of the enforcing authority. Only the Adjudicator can award costs and only in circumstances where the enforcing authority’s behavior is found by the Adjudicator to have been ‘frivolous, vexatious or wholly unreasonable’. In other words costs are awarded very seldomly indeed even in the many circumstances where the enforcing authority has acted unreasonably. In any event there is no mechanism for compensation for any stress or inconvenience. Rules introduced in March 2008 may make the awarding of costs more easy but don’t hold your breath.
You should also be aware that the local authority can also claim costs against an appellant in the same circumstances.
The regulations which cover the award of costs are found in Regulation 12 of The Road Traffic (Parking Adjudicators) (London) Regulations 1993 (as amended) as follows:
12. (1) The adjudicator shall not normally make an order awarding costs and expenses, but may, subject to paragraph (2) make such an order –
(a) against a party (including an appellant who has withdrawn his appeal or a local authority that has consented to an appeal being allowed) if he is of the opinion that that party has acted frivolously or vexatiously or that his conduct in making, pursuing or resisting an appeal was wholly unreasonable; or
(b) against the local authority, where it considers that the disputed decision was wholly unreasonable.
(2) An order shall not be made under paragraph (1) against a party unless that party has been given an opportunity of making representations against the making of the order.
(3) An order under paragraph (1) shall require the party against whom it is made to pay the other party a specified sum in respect of the costs and expenses incurred by that other party in connection with the proceedings.