CEL address of car park wrong, retailer was closed

scruffyharry

Could someone please point me to relevant postings regarding the following as possible defences against a PCN? The company concerned is Civil Enforcement, on behalf of a car park presumably owned by B&M (the general store).
1. The address of the carpark given is wrong. It is the address of the B&M store. The car park is actually on another road round the back. Furthermore the postcode given does not exist. So is the notice in breach of the 2012 Protection of Freedom Act Schedule 4 para 9.2a since it fails to specify correctly “the relevant land on which [the vehicle] was parked”?
2. B&M was closed at the time of parking there, so can it be argued that their charge is unreasonable? No B&M customers are being prevented from parking.
3. In the area (near a football ground) there are several other car parks offering *supervised* car parking for around £7. Does this identify a reasonable charge for using this carpark when the store is closed?
4. The car park prominently displays warnings that cars will be clamped. Is this an offence (Criminal Damage Act 1971, s. 2: threat to damage property) and will it help?

All advice (or cross references) gladly accepted.

pogofish

Start by reading the Newbies Sticky at the top of this forum very carefully.

Do not reply to anything until you have read the thread carefully, incl the glossary and understood the basic issues involved.

Then post back here when you have something together to get it refined.

scruffyharry

Yes I did read the Newbies sticky(and lots of other websites as well) but couldn't find anything that helped answer my basic question of whether those points were valid as a defense. Or to be more exact, I found so much advice there I wasn't sure where to start. Following advice from other websites I have just ignored the first two letters, and today have received a "Letter before action". I'm not sure how likely they are to issue proceedings, but want to start preparing just in case (though from my posting you will see that I *have* done a little bit of research. I presume it is too late to go to POPLA, so I am drafting a reply to Civil Enforcement. See next post.

scruffyharry

OK, here we go:
************************************************
Dear Sirs

Re: PCN No. ....................

I challenge this 'PCN' on behalf of the registered keeper of the car.

There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge. **** [but see below] ****

There is no car park at the address given, and the postcode is not recognised by the Post Office post code finder. Therefore the notice is in breach of the 2012 Protection of Freedom Act Schedule 4 para 9.2a since it fails to specify correctly “the relevant land on which [the vehicle] was parked”.

The photographs show the car entering and leaving a different car park on land which I believe is owned by the retail store B&M. The alleged incident took place on a Sunday, when the store was closed. In ParkingEye vs Beavis, it was found that the owners of the land had a legitimate interest in inducing Mr Beavis not to overstay in order to efficiently manage the car park for the benefit of the generality of users of the retail outlet. Since the store was closed, this argument cannot apply. Parking on B&M’s land when B&M is closed does not represent any loss to the owners of the land.

The proposed charge of £100 is not fair and reasonable under the Unfair Terms in Consumer Contracts Regulations 1999, considering that the car park serves the B&M store, which was closed at the time. Other car parks on private land in the area (of which there are many, as it is close to the football ground) offer supervised parking for around £6 or £7. This indicates a reasonable sum to be charged for parking in this car park when spaces are not needed by customers.

The car park features prominent signs warning that cars parked illegally will be clamped. Clamping of cars on private land has been illegal since the 2012 Protection of Freedom Act. This threat is therefore an offense under the Criminal Damage Act 1971, s. 2: threat to damage property. In contrast, there is one small, dirty, partially obscured sign detailing the parking terms and conditions. I believe that this signage fails the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis.

The PCN also warns that you may forward the account to a debt recovery agency. I am sure that you are aware that payment of parking charges is a matter for the Small Claims Court. Your unwarranted threat regarding debt recovery and the threat of court for the ordinary matter of a driver using my car without causing any obstruction nor offence, has caused significant distress to me.

**** [see below] I do not give you consent to process data relating to me or this vehicle. I deny liability for any sum at all and you must consider this letter a Section 10 Notice under the DPA.*** You are required to respond within 21 days. I have kept proof of submission of this appeal and look forward to your reply.

Yours faithfully,
*********************************************
I'm not sure about the last paragraph. Actually I think it would be entirely reasonable to pay a charge of up to £10, bearing in mind what I said about other car parks in the area. So I am not denying that the car was parked there. SHould I offer to settle out of court, with, say, a payment of £10 plus £10 towards costs so far incurred?

pogofish

scruffyharry wrote: »

Yes I did read the Newbies sticky(and lots of other websites as well) but couldn't find anything that helped answer my basic question of whether those points were valid as a defense. Or to be more exact, I found so much advice there I wasn't sure where to start. Following advice from other websites I have just ignored the first two letters, and today have received a "Letter before action". I'm not sure how likely they are to issue proceedings, but want to start preparing just in case (though from my posting you will see that I *have* done a little bit of research. I presume it is too late to go to POPLA, so I am drafting a reply to Civil Enforcement. See next post.

The facts of any situation actually mean next to nothing to these guys - You need to couch your appeal mainly around the proven arguments outlined in the sticky and yes you can add some factual points to your defence so long as they don't identify the driver but don't bank on them giving it much more than scant attention.

Ignoring became impractical in England and Wales back in 2012 - Many other websites have not been updated, so their advice is outdated and cannot be relied upon. Ignoring is only viable in certain very specific circumstances now.

scruffyharry

Thanks for the feedback. Whether I should or should not have ignored the first two letters, that's what I did, and so that's where I am. So should I now write to them in terms like the above? I feel the wrong address is a good argument, isnt it? The address they give is a busy main road with double yellow lines. And as I said, the postcode doesn't exist. Should I omit the last paragraph?

Herzlos

I wouldn't bother telling them you know the car park is wrong - leave them to continue getting it wrong at POPLA/court. They won't care anyway.
Just say something like "I have no reason to believe that the vehicle was in the car park mentioned at the time".

scruffyharry

Once they know that the address is wrong (however they may discover that) can they issue a new ticket for the same offence but with the correct address?

Another question: if it goes go to court, do I have to reveal to them my proposed defence(s)? If the wrong address doesnt work I have some other (weaker) ideas, but I am worried that by presenting them I am admitting that the ticket DOES relate to that carpark.

Coupon-mad

Once they know that the address is wrong (however they may discover that) can they issue a new ticket for the same offence but with the correct address?

They won't bother.

if it goes go to court, do I have to reveal to them my proposed defence(s)?

Yes, but your defence will be like all the other CEL defences on here (not the story of what happened). We have not seen a single court claim from CEL actually progress past first stage, once a defence from here is filed.

So read other CEL defence threads by searching the forum for those words.

scruffyharry

Thanks for that. In reply to my own question, I have been reading again the PoFA, and if I am not mistaken, a PCN must be issued within 14 days of the "offense" taking place.

I will have a look at other posters' experiences with CEL. Thanks.

scruffyharry

There's a lot to read, but I am a patient person. SO here are two dumb questions:

The original PCN says (in tiny writing) the creditor does not know the name of the driver. BUT, it also says the notice is issued under Sch 4 of the PoFA, and was sent within the time limit. So does that mean the defence of not naming the driver won't work (because the keeper is liable).

Second, once I have decided on my defence, I send it to CEL, is that right? Just checking.

Finally, all that stuff about not signing letters may be very helpful. I have also found out that CEL do not manage the carpark (that's Creative Parking Solutions), contrary to the first paragraph in their claim.