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Neutral Citation Number: [2017] EWHC 430 (Admin)

Case No: CO/4348/2016IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT

Birmingham Civil Justice Centre

Date: 9 March 2017

Before :

MRS JUSTICE LANG DBE - - - - - - - - - - - - - - - - - - - - -

Between :

THE QUEENon the application of

NOTTINGHAM CITY COUNCIL

Claimant

- and -BUS LANE ADJUDICATOR Defendant

(1) MOHAMMED SATTAR (2) SECRETARY OF STATE FOR TRANSPORT Interested Parties

- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -

Mungo Wenban-Smith (instructed by Nottingham City Council) for the ClaimantRuth 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

Judgment Approved by the court for handing down. R (Nottingham CC) v BLA & Ors

Mrs Justice Lang :

1. 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.

2. 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”).

3. Permission to apply for judicial review was granted by Green J. on 2 November 2016.

The circumstances in which the PCN was issued

4. 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…”

5. 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”).

6. 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 28th 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.”

7. 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.

8. The Council rejected his representations in a letter dated 5 January 2016.

The appeal to the Bus Lane Adjudicator

9. 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.

10. 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.”

11. Adjudicator Garbett agreed with two Decision Notices by other Adjudicators1 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

12. 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.

13. 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.

14. 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

15. 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.

1 Donovan v Nottingham City Council NG 92682875; Weatherby v Nottingham City Council NG 92668364


The regulatory framework

16. 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

17. 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.”

18. 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…”

19. 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 Zone is not capable of enforcement by camera.


Bus Lanes

20. Bus lane contraventions are governed by a separate legislative code from other road traffic contraventions, such as moving traffic contraventions and parking restrictions. Bus lane contraventions may be enforced by local authorities by the issue of PCNs in civil proceedings. Provisional guidance on bus lane enforcement in England, outside London, was issued by the Secretary of State for Transport in 2005 and revised in 2008. Chapter 2, which sets out the ‘Policy Context’, emphasised the purposes behind bus lane provision and other bus priority measures to make bus travel quicker and more reliable by removing congestion from bus routes and consequently encouraging greater bus use, and the reasoning for its removal from police enforcement to civil enforcement by local authorities.

21. A bus lane contravention is defined by subsections 144(4)-(5) of the Transport Act 2000 (“TA 2000”) which provide:

“(4) A bus lane contravention is a contravention of any such provision of –

(a)a traffic regulation order,

…..

as relates to the use of an area of road which is or forms part of a bus lane.

(5) And an area of road is or forms part of a bus lane if the order provides that it may be used –

only by buses (or a particular description of bus), or

only by buses (or a particular description of bus) and some other class or classes of vehicular traffic.”

22. I note that section 142(3) RTRA 1984 provides that references in that 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 vehicles or traffic or to any other circumstances whatsoever” although this definition is not expressly incorporated into the TA 2000.

23. The terms “bus gate” and “bus-only streets” are not found in the legislation, but they are described in the Traffic Signs Manual 2008:

“15.4 Bus-only streets and bus gates are lengths of road or parts of a road where access is restricted to buses, although sometimes other vehicles such as pedal cycles, taxis and trams are also admitted.”

24. Section 144 TA 2000 confers power on the Secretary of State to make regulations to provide for the imposition of penalty charges specifically in respect of bus lane contraventions by “approved local authorities”, namely an authority for an area where


an order designating the whole or part of its area as a civil enforcement area has been made under paragraph 8(1) of Schedule 8 to the Traffic Management Act 2004 and a statutory instrument has been made specifying the authority as an approved authority. The Council is an approved authority.

25. The Bus Lane Regulations 2005 were made pursuant to section 144 of the TA 2000. Regulation 8(5) of the 2005 Regulations specifically identifies a number of matters which a penalty charge notice issued thereunder must contain. They include at paragraph (c) “the reasons why the authority believe that a penalty charge is payable”.

Traffic Regulation Order

26. Under section 1 RTRA 1984, a traffic authority has power to make a traffic regulation order where it appears to the authority that it is expedient to make the order for one or more of the specified purposes contained in that section. Those purposes include:

“(a) for avoiding danger to persons or other traffic using the road or any other road or for preventing the likelihood of any such danger arising, or….

(c) for facilitating the passage on the road or any other road of any class of traffic (including pedestrians).”

27. The procedure to be adopted in making a traffic regulation order is contained in LATOR 1996. A statement of reasons for making the order has to be deposited by the authority as part of the publication of the proposals: regulation 7(4) and Schedule 2 paragraph 1(d).

28. The Council has made the Nottingham City Council (Shakespeare Street, Nottingham) (Bus Only Street – Prohibition of Driving Amendments) Traffic Regulation Order 2015 (“the 2015 Order”).

29. The Definitions section provides:

“D3: “Bus” includes a tramcar and has the same meaning as in Regulation 22 of the Traffic Signs Regulations and General Directions;”

“D4: “Bus lane” is defined as “an area of road forming part or the whole of a bus lane as specified in this Order and bounded by delineating road markings and/or signs as prescribed in the Traffic Signs Regulations and General Directions or otherwise authorised by the Relevant National Authority”;”

“D5: “Bus only street” and “Bus Gate” “as defined in the Schedules, have the same effect as if they were a Bus Lane;”

30. Part II, section 8, article 11 provides as follows:


“11(1) Save as provided by 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 road specified in Column 2 of Schedule 8 to Part II of this Order) during the times specified in Column 4 of that schedule, in

(i) The direction specified, or

(ii) Any direction, where no direction is specified, in relation to a length of road specified in Column 2.

(2) Nothing in Paragraph 11(1) of this Article shall apply to any vehicle, which is of one or more of the categories specified, in Column 3 of Schedule 8 to Part II…[not applicable]

(3) Nothing in Paragraph 11(1) of this Article shall apply to:-

a pedal cycle,

a bus or

a tram car;

when it is indicated on the relevant sign and is erected in accordance with The Traffic Signs Regulations and General Directions, in relation to each road or length of road specified in Column 2 of the said Schedule.”

31. Column 2 of Part II Schedule 8 regulates traffic on Shakespeare Street (Bus Only Street), “from a point 110 metres east of its junction with Goldsmith Street heading in a north westerly direction back to that junction”; column 4 provides that the duration of that restriction is “At any time” with an exemption for categories of public service vehicles; and from “7pm-midnight and midnight-7am” with an exemption for category U1, namely vehicles with a current valid Restricted Access Permit being used for the purpose of loading/unloading on Shakespeare Street.

Traffic Signs

32. Section 64(1) RTRA 1984 Act defines “traffic sign” as meaning any object or device for conveying to traffic on roads or any specified class of traffic “warnings, information, requirements, restrictions or prohibitions of any description” specified by regulations or authorised by the Secretary of State. By section 64(2), traffic signs are to be of the size, colour and type prescribed by such regulations except where the Secretary of State authorises the erection or retention of a sign of another character.

33. Section 65 RTRA 1984 outlines the powers and duties of highway authorities relating to the placing of traffic signs. It provides:


“(1) The traffic authority may cause or permit traffic signs to be placed on or near a road, subject to and in conformity with such general directions as may be given by the Ministers acting jointly or such other directions as may be given by the Secretary of State.

…

The Secretary of State may give directions to a local traffic authority –

for the placing of a traffic sign of any prescribed type or authorised character specified in the directions…”

34. Mandatory requirements for traffic signs are set out in the TSRGD 2002. Regulation 23 defines “Bus lane” as “a traffic lane reserved for (a) motor vehicles constructed or adapted to carry more than 8 passengers (exclusive of the driver); (b) local buses not so constructed or adapted; and (c) pedal cycles and taxis ….”

35. Regulation 11 provides:

“Subject to the provisions of these Regulations, a sign for conveying information or a warning, requirement, restriction, prohibition or speed limit of the description specified under a diagram in Schedules 1 to 7, Part II of Schedule 10 and Schedule 12 to traffic on roads shall be of the size, colour and type shown in the diagram.”

36. The Traffic Signs Manual 2008, published by the Department of Transport, gives advice to traffic authorities on the discharge of their duties. In its “Introduction” it explains:

“1.1 Subject always to compliance with the Directions, which …. are mandatory …. it is for traffic authorities to determine what signing is necessary to meet those duties, although failure to follow the Manual’s guidance without good reason might well lead to enforcement difficulties. In particular, adjudicators might consider such failure to be evidence that the signing was unclear. Traffic authorities should always remember that the purpose of regulatory signs is to ensure that drivers clearly understand what restrictions or prohibitions are in force.”

“1.5 In this chapter the word “must” is used to indicate a legal requirement of the Traffic Signs Regulations and General Directions that must be complied with. The word “shall” indicates an essential (or mandatory) requirement of compliance with this chapter, and “should” indicates a course of action that is strongly recommended and represents good practice. The word “may” generally indicates a permissible action, or an option which requires consideration depending on the circumstances.”


37. Regulation 18(1) LATOR 1996 provides:

“(1) Where an order relating to any road has been made, the order making authority shall take such steps as are necessary to secure –

(a) before the order comes into force, the placing on or near the road of such traffic signs in such positions as the order making authority may consider requisite for securing that adequate information as to the effect of the order is made available to persons using the road.”

38. It is well-established that a failure to comply with the regulation 18 duty as to signage is a proper ground on which an adjudicator may allow an appeal against the issue of a penalty charge notice on the ground that the alleged contravention of the relevant traffic regulation order did not occur. (See R (London Borough of Camden) v. The Parking Adjudicator [2011] EWHC 295 (Admin), per Burnett J. at [50] – [51]).

39. In Herron v. The Parking Adjudicator and Ors [2011] EWCA Civ 905, Stanley Burnton LJ (with whom the other members of the Court agreed) reviewed the authorities, and held:

“35. It has long been recognised that the enforceability of a TRO requires that adequate notice of the applicable restriction is given to the road user. This principle is derived from the duty imposed by reg. 18 of the 1996 Regulations….In Macleod v Hamilton 1965 SLT 305 Lord Clyde said, at 308:

“It was an integral part of the statutory scheme for a traffic regulation order that notice by means of traffic signs should be given to the public using the roads which were restricted so as to warn users of their obligations. Unless these traffic signs were there accordingly and the opportunity was thus afforded to the public to know what they could not legally do, no offence would be committed. It would, indeed, be anomalous and absurd were the position otherwise.”

Lord Migdale said, at 309:

“….the order is not effective unless and until the council complies with Regulation 15(c) and erects road signs at the locus. Signs were erected but they were not the proper ones nor were they clear. ”

The regulation to which Lord Migdale referred was in the same terms, so far as material, as reg. 18 of the 1996 Regulations.

36. That principle was approved and applied by the Divisional Court in James v Cavey [1967] 1 All ER 1048, [1967] 2 QB


676. Giving a judgment with which the other members of the court agreed, Winn LJ said….:

“……. The reason, shortly stated, which requires, in my view, that this appeal should be allowed, is that the local authority did not take such steps as they were required to take under that regulation. They did not take steps which clearly could have been taken, and which clearly would have been practicable, to cause adequate information to be given to persons using the road by the signs which they erected.”

See too R. (Oxfordshire County Council) v. Bus Lane Adjudicator [2010] EWHC 894 (Admin)…

37. Applying this principle, the question for the Adjudicator was whether the local authority had taken steps to secure that adequate information was conveyed to the Appellants as to the parking restrictions that they had infringed…..”

40. In the Oxfordshire County Council case, a designated section of the High Street was closed to all vehicles other than buses and exempt vehicles between 7.30 am and 6.30 pm. Oxfordshire County Council successfully challenged the Chief Bus Lane Adjudicator’s decision on two grounds. First, that the designated section of the street was not a bus lane within the meaning of section 144(5) TA 2000, and so fell outside the scope of its enforcement powers. Second, on the basis that it was a bus lane, that there was insufficient signage to comply with regulation 18 of LATOR 1996.

41. On the signage issue, Beatson J. held as follows:

“62. The Council accepts (skeleton argument para 55(5)) that “this in practice obliges it to install such traffic signs as are requisite so as to make it reasonably clear to any road users what action is expected of them by a particular [Traffic Regulation Order]”. This is a question of fact for the tribunal of fact. A court exercising a judicial review jurisdiction can only interfere where the tribunal of fact has made an error of law …”

“63. I have concluded that the Adjudicator and the Chief Adjudicator fell into error in concluding that the signage was inadequate in not giving notice that the rationale or basis of this prohibition was a bus lane. I accept the Council's submission that the duty to place signs providing adequate information as to the effect of an Order requires notice of the prohibition and not notice that it was a prohibition because the prohibited area is a bus lane (and it is therefore civilly enforceable). It is the practical effect of the Order not its precise juridical basis or rationale that is relevant. Secondly, in the light of the acceptance by the Chief Adjudicator that the signage was adequate for the purpose of a criminal prosecution for contravening the prohibition, it was not open to her to conclude


that the signs were not sufficiently clear for the purposes of civil enforcement.”

.….

“65. The Defendant's submission that the fact that signs are prescribed or authorised does not mean they are sufficient for securing adequate information as to the effect of an order is made available to road users is clearly correct. If the signs do not in fact provide adequate information no offence is committed; see James v Cavey [1967] 2 QB 676. Such information is a requirement and, as Jackson J stated in R (Barnett LBC) v Parking Adjudicator [2006] EWHC 2357 (Admin) at [41], if the statutory conditions are not met the financial liability does not arise……”

…..

“68. ….the Defendant … did not take into account the signage’s conformity to the Department’s formal guidance set out in Ch. 3 of the Traffic Signs Manual. That ... specifically states that Diagram 619 should be used for bus lanes “where access to premises is required for other vehicles or where the bus lane does not apply at all times”….”

“69. In such circumstances, where the signs have not been placed in positions where they cannot be seen or easily seen, are not obscured by vegetation or other street furniture, and are clearly visible and comply with Departmental Guidance, there must be strong reasons given for concluding that they do not provide adequate information. None were given in this case.”

42. Mr Wenban-Smith relied upon the Oxfordshire County Council case, not Herron. However, the Court of Appeal’s analysis of regulation 18 of LATOR 1996 is plainly applicable here. Mr Wenban-Smith submitted that the test to be applied was that set out by Beatson J., at the beginning of [62], where he appeared to approve Oxfordshire County Council’s re-formulation of the statutory test. In my view, the re-formulation did not accurately reflect the statutory test, but the earlier parts of the judgment show that Beatson J. was plainly aware of the precise terms of regulation 18. I do not consider that the decision of the High Court in Oxfordshire County Council established a different test for the purposes of regulation 18. The Court of Appeal cited the Oxfordshire County Council case at [36], and did not seek to distinguish it. In any event, the Court of Appeal decision is a higher authority which is binding upon me.

Conclusions

43. The Council’s case was that the 2015 Order created a Pedestrian Zone and a Bus-only street and Bus gate in a section of Shakespeare Street.


44. The Council submitted that the Adjudicator’s decision was flawed because he doubted whether the 2015 Order did create a Pedestrian Zone in Shakespeare Street. In my judgment, his doubts were justified, since there was no reference to a Pedestrian Zone in the Order. Both the title and the body of the Order only referred to the establishment of a bus-only street.

45. Unlike the Adjudicator, I have had the benefit of seeing the Statement of Reasons and the witness statement of Ms Nash made on behalf of the Council. The 2015 Order was made in response to a request from Nottingham Trent University to improve pedestrian safety for students by reducing through traffic and to improve the campus amenities. It was not intended to facilitate the movement of buses by giving them priority over other traffic. Indeed no scheduled local or national bus services used Shakespeare Street. The only buses using the street were student and school buses, and a tram replacement bus service. Access to other vehicles was limited to public services vehicles and essential access and deliveries at restricted times. This material confirms that it was the Council’s intention to create a Pedestrian Zone, exercising its powers under section 1(a) RTRA 1984. It also assists in demonstrating that the street falls within the definition of a Pedestrian Zone in TSRGD 2002 regulation 4. It does not support the Council’s case that it also intended to create a bus lane to facilitate the passage of buses, in the exercise of its powers under section 1(c) RTRA 1984.

46. I am doubtful as to whether it is permissible to make up for the deficiencies in the drafting of the 2015 Order by reference to the Statement of Reasons and a subsequent witness statement. The Order is a formal legal document which ought to be construed according to the text within it.

47. However, I agree with the Defendant that the Adjudicator went on to decide the appeal on the basis that the 2015 Order did establish a Pedestrian Zone, and so that is the basis upon which this judicial review ought to be decided.

48. I agree with the Adjudicator’s analysis that the contravention which occurred in this case was an unauthorised entry by Mr Sattar’s vehicle into the Shakespeare Street Pedestrian Zone. Both the Adjudicator and Adjudicator Garbett were entitled to find that, under the TSRGD 2002 and the Traffic Signs Manual 2008, diagram 618.3 (with permitted variants), was the prescribed sign which was appropriate to warn users of Pedestrian Zone restrictions in Shakespeare Street. The Council had erected two signs at the entrance to the restricted part of the street which complied with diagram 618.3. Although the Adjudicator expressed doubt in paragraph 15 whether “M’night” was an approved abbreviation for “Midnight”, it is now accepted by the Defendant that it is permissible (section 12.8 of the Traffic Signs Manual). In my view, this point was not ultimately material to the Adjudicator’s decision, and therefore cannot succeed as a ground for judicial review.

49. The Adjudicator was correct to conclude that the Council did not have power to issue a PCN for contravention of a Pedestrian Zone restriction since in the Nottingham area, moving traffic contraventions are not subject to civil enforcement. Instead, they remain enforceable by the police by way of criminal prosecutions in the magistrates’ court. This was not in dispute.

50. Despite his understandable misgivings about the Council’s approach in seeking to take civil enforcement proceedings, the Adjudicator went on to consider properly and


fairly the Council’s submission that the 2015 Order created a bus-only lane as well as a Pedestrian Zone in the same section of Shakespeare Street, which it was entitled to enforce by issue of a PCN.

51. In my judgment, the Adjudicator was entitled to uphold the finding by Adjudicator Garbett that the Council had failed to comply with the requirement in the Traffic Signs Manual (paragraph 15.29), that where a bus lane was created, signs in the form of diagram 953 or diagram 619 with an exception plate to diagram 620 “should be used”. This term “indicates a course of action that is strongly recommended and represents good practice” (paragraph 1.5). Although there was a blue sign informing motorists of “24 hour bus lane enforcement on Shakespeare Street”, Adjudicator Garbett found that the sign was too far away from the entrance to the bus gate (about 100 m away) to constitute adequate signage for the purposes of regulation 18 of LATOR 1996.

52. I am unable to accept the Council’s submission that, instead of complying with the Traffic Signs Manual 2008, it was entitled to rely upon earlier guidance contained in section 6 of Local Transport Note 1/97, suggesting that Pedestrian Zone diagram 618.2 or 618.3 could be used to sign a bus-only street. I was not provided with evidence that the 1/97 Note was still extant, but even if it has not been formally withdrawn, the Traffic Signs Manual 2008 takes priority as the more recent and authoritative guidance.

53. The Adjudicator correctly directed himself in law on the test to apply under regulation 18 LATOR 1996, citing the cases of Camden, Herron and Oxfordshire County Council. I do not agree with the Council’s submission that the test is wholly subjective, namely, what did the recipient of the PCN know or understand by the signage when he contravened it. This is not the test as set out in regulation 18, and it would be unworkable in practice, leading to different outcomes in appeals concerning the same signage, depending upon the state of knowledge of each individual. Furthermore, contrary to the Council’s submission, I consider that the phrase “persons using the road” in regulation 18 is capable of including pedestrians, as well as cyclists and motorists (paragraph 38 of the Adjudicator’s decision). The Adjudicator was entitled to emphasise the importance of consistency in signage, to avoid confusion among road users who may be travelling at speed, in unfamiliar places, perhaps when visibility is poor.

54. Although the Council relied heavily upon the decision of Beatson J. in Oxfordshire County Council, I consider that his conclusions ultimately turned on the particular facts in the case before him, which were distinguishable from this case. In Oxfordshire, the County Council had used the Traffic Signs Manual recommended sign (diagram 619) to designate the bus-only section of the street, unlike this case in which the Council had not done so, and was instead relying upon the prescribed sign for a Pedestrian Zone. It was not suggested in Oxfordshire that a Pedestrian Zone had been created, and so the inadequacy of a Pedestrian Zone sign to indicate a bus-only street was not in issue.

55. Adjudicator Garbett found as a fact that the signage was unclear and did not provide adequate information as to the bus gate restriction, which was the basis of the PCN. As Stanley Burnton LJ said in Herron; “the enforceability of a TRO requires that adequate notice of the applicable restriction is given to the road user”. The


Adjudicator reviewed her findings, and upheld them. The Council has to overcome a high threshold in establishing that the findings of fact by Adjudicator Garbett, confirmed by the Adjudicator, were Wednesbury unreasonable. The Council has not succeeded in doing so.

56. For the reasons set out above, the claim for judicial review is dismissed.

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