Gladstones - Technical defence against PCM

Kas22

KeithP wrote: »

It's entirely up to you.

Not needed until a few days before the hearing.

Have you read Loadsofchildren123's thoughts about that in the NEWBIES thread?

I couldn't find anything specific but there was a link of steps where Loadsofchildren123 wrote:

This is not provided for in small claims timetables, but many Defendants choose to file a Case Summary/Skeleton Argument a few days before the hearing. This simply summarises your case, your defence and your factual evidence. The aim of the document is to replace your oral submissions on the day (so you say to the judge that you are relying on what's in your skeleton and ask him if he wants you to add anything, and he may well say no - the only thing you then need to speak about is rebutting any points the Claimant has made on the day, unless these are dealt with in your Skeleton - it is best to point the judge to your strongest arguments and to make sure he understands them). If there's anything you forgot in your original defence, now is the time to put it into the Skeleton, but the court has a discretion to say that you didn't put that in your defence, you can't get it in now through the back door.

Loadsofchildren123

Have you filed that WS? If not, you need to expand on your estoppel argument.
Think of it like writing a short story for someone who knows nothing about what's happened.
So you introduce the facts - I'm the RK (or the driver) of the vehicle. I live at xxxx. The car park is a residential car park used by the residents of xxxx. I have lived there for x years. The Claimant has been on site for x years [include leasehold arguments].


My flat has no designated parking space, and the spaces in the car park are on a first come first served basis.


When the Claimant first came on site in xxx, there was a large bike shed [describe location]. In xxx that bike shed was removed. The area where the bike shed used to be does not form part of the carpark over which the Claimant is authorised to operate. When the bike shed was removed, no new signs were installed and the Claimant's signage was as it had always been.


Then the argument about the marked bays, and say how you and other residents have for x years parked on the space where the bike shed used to be, and have never had a ticket there, until now.


What is your estoppel argument? You're not saying you've been told you can park there are you? You're just saying that you've always parked there and nobody's ever told you not to? Look up estoppel by acquiescence - https://en.wikipedia.org/wiki/Estoppel_in_English_law#Estoppel_by_acquiescence


I haven't read the full thread, so may be off the mark a bit, but you'll get the gist

Kas22

Loadsofchildren123 wrote: »

Have you filed that WS? If not, you need to expand on your estoppel argument.
Think of it like writing a short story for someone who knows nothing about what's happened.
So you introduce the facts - I'm the RK (or the driver) of the vehicle. I live at xxxx. The car park is a residential car park used by the residents of xxxx. I have lived there for x years. The Claimant has been on site for x years [include leasehold arguments].


My flat has no designated parking space, and the spaces in the car park are on a first come first served basis.


When the Claimant first came on site in xxx, there was a large bike shed [describe location]. In xxx that bike shed was removed. The area where the bike shed used to be does not form part of the carpark over which the Claimant is authorised to operate. When the bike shed was removed, no new signs were installed and the Claimant's signage was as it had always been.


Then the argument about the marked bays, and say how you and other residents have for x years parked on the space where the bike shed used to be, and have never had a ticket there, until now.


What is your estoppel argument? You're not saying you've been told you can park there are you? You're just saying that you've always parked there and nobody's ever told you not to? Look up estoppel by acquiescence - https://en.wikipedia.org/wiki/Estoppel_in_English_law#Estoppel_by_acquiescence


I haven't read the full thread, so may be off the mark a bit, but you'll get the gist

Thanks... I haven't filed the WS yet, but am planning on doing so this week.

I live in a freehold house and not an apartment so the leasehold won't apply in this case.

The reason for parking in the space was that there was nowhere else to park. Also, when the parking restrictions came into force the bike shed was no longer there.
After a few months and residential complaints (from the flat), the parking restrictions where removed.

I don't have an estoppel argument. As you rightly wrote, I nor anyone else have been informed/told that we can park there, people just have without being told not to.

Kas22

Right, I'll include the following at the start before moving onto the paragraphed points:


[FONT=&quot]I am the defendant in this matter, [NAME] of [ADDRESS]. The car park is a residential car park used by the residents of the block of flats on the [NAME] development. I have lived on the development since it was first built 17 years ago. The Claimants first introduction to the site was around February 2017.[/FONT]
[FONT=&quot]Living in a terraced house we were allowed to park freely on the site, but never parked in the car park as it was allocated for the flats. [/FONT]
[FONT=&quot]There was a communal bike shed that was located on the outskirts of the parking area and around the development in several places. In 2013 all the bike sheds were removed. [/FONT]
[FONT=&quot]The area where the bike shed used to be does not form part of the car park over which the Claimant is authorised to operate.[/FONT]
[FONT=&quot]When the Claimant first came into force in February 2017, freehold owners where not made aware of the inception of the parking control. Upon parking in what use to be the bike shed area, and after receiving a PCN, I reviewed the Claimants sign which was not clearly visible upon driving up-to the car park, nor did it stipulate anything about the bike shed area being part of the designated parking area. [/FONT]
[FONT=&quot]Following a residential vote, the parking control was removed on Sunday 9th July 2017. [/FONT]

Coupon-mad

In 2013 all the bike sheds were removed, and this unmarked area was routinely used by residents to park their cars, without penalty and with no issues.

When the Claimant first came into force in February 2017, freehold owners where not made aware of the inception of the parking control and the Managing Agents failed to consider the existing rights and easements enjoyed by residents and failed to pay regard to the Landlord & Tenant Act 1987. I am a freehold owner, and I put this Claimant to strict proof that they/the Managing Agent obtained from the leasehold owners, 75% consensus agreement to vary their leases and impose a third party parking firm to ride roughshod over everyone's primacy of contract. This did not happen. No-one was consulted and the parking regime lasted mere months before the level of complaints from residents, forced them out.

Do you pay a service charge for the upkeep of the communal areas? Then you should have been consulted - along with all residents - before they imposed an onerous parking regime on you all because you have an implied easement and a right of way, a right to 'pass and re-pass' that Bulstrode v Lambert held, includes parking.

You are a freeholder. So, don't your title deeds show the right of way/right to pass & re-pass, to access your property?

Kas22

Coupon-mad wrote: »

Do you pay a service charge for the upkeep of the communal areas? Then you should have been consulted - along with all residents - before they imposed an onerous parking regime on you all because you have an implied easement and a right of way, a right to 'pass and re-pass' that Bulstrode v Lambert held, includes parking.

You are a freeholder. So, don't your title deeds show the right of way/right to pass & re-pass, to access your property?

Yes, I pay a yearly service charge for the maintenance of the grounds, communal areas and roads etc.

I had a look at the title deeds previously, but that was for something else. I'll have a look at them again today, but I would assume I have a right of way/right to pass & re-pass to access the property.

Coupon-mad

I'll have a look at them again today, but I would assume I have a right of way/right to pass & re-pass to access the property.

So would I, as in Moncrieff v Jameson which was about access to a house. You need to read that transcript, and Bulstrode v Lambert (and use both as exhibits with you other evidence with your WS).

Clearly the imposition of a concealed 'pitfall or trap' (search the forum and read the Beavis case quotes about that) of a notorious, aggressively litigious PPC and 'penalties' interferes with your rights of way and right to pass/re-pass (and park).

You have easements at least and primacy of contract - and these facts cannot be disregarded by a parking firm.

Loadsofchildren123

Look at my link on estoppel by acquiescence in post 113. You don't have a promissory estoppel argument, but you have an estoppel by acquiescence argument - beef up your bit about parking in that area, as did other residents, from 2013, without penalty or objection.


Why do you say they have no authority over the areas previously covered by the sheds? What does their parking contract with the freeholder/MC say and how does it define the car park? Make reference to it to show clearly that the shed-areas are excluded. I say this because the bike sheds had gone years before they came on the scene so they'll say the bike shed areas were included.

Kas22

Coupon-mad wrote: »

So would I, as in Moncrieff v Jameson which was about access to a house. You need to read that transcript, and Bulstrode v Lambert (and use both as exhibits with you other evidence with your WS).

Clearly the imposition of a concealed 'pitfall or trap' (search the forum and read the Beavis case quotes about that) of a notorious, aggressively litigious PPC and 'penalties' interferes with your rights of way and right to pass/re-pass (and park). You have easements at least and primacy of contract- and these facts cannot be disregarded by a parking firm.

Had a look at the title deeds and it states the following:

Rights granted for the benefit of the Property

The property transferred with the benefit of the following rights so far as the same are exercisable over that part of the Estate now or formerly owned by the Transferor:

X.1 Of way as necessary to give access to and from the nearest public highway over and along the Adoptable Roads

X.2 to the extent reasonably necessary for the purpose of domestic use and convenience incidental to the occupation of the Property to use the vehicular and pedestrian access ways within the Communal Areas and Facilities and any Accesswas and Private Shared Footpaths as necessary for access to and egress from the Property (including the Garage or Parking Space (as the case may be) )and to use any other parts of the Communal Areas and Facilities not laid out as access ways for the purpose for which the same were reasonably intended

Also states:

Rights and easements granted to the Transferee are granted in common with the Transferor the Developer and the Manager and all others having similar rights and those to whom such rights are granted in the Perpetual Period

Restrictive covenants by the Transferee

The Transferee HEREBY COVENANTS with the Transferor for the benefit and protection of each and every part of the Estate and so as to bring the Property into whosoever hands the same may come and as a separate covenant with the Manager to observe and perform the following covenants but not in the case of restrictive covenants so as to render himself liable after he shall have parted with all interests in the Property:-


Not to:

X. Permit any vehicles of any description to any articles to obstruct any part or parts of the Communal Area and Facilities or Accessways not to park thereon save in a Parking Parking Space or Visitor Parking Space not at any time to obstruct or deposit any matter or thing of whatsoever nature Thereon

Loadsofchildren123 wrote: »

Look at my link on estoppel by acquiescence in post 113. You don't have a promissory estoppel argument, but you have an estoppel by acquiescence argument - beef up your bit about parking in that area, as did other residents, from 2013, without penalty or objection.

Why do you say they have no authority over the areas previously covered by the sheds? What does their parking contract with the freeholder/MC say and how does it define the car park? Make reference to it to show clearly that the shed-areas are excluded. I say this because the bike sheds had gone years before they came on the scene so they'll say the bike shed areas were included.

Looking back at all the documents previously supplied by the Claimant when going through the early appeal stages, they said that the site had been audited by IPC and a copy of the landowner's authority had been provided as part of the audit process, but I can't see this in the pack.

All that is shown on the PCM site information map sheet is that all the parking bays and communal areas are highlighted, which would mean that the communal area (shed) are included?
The restrictions are:
- Resident permit holders in corresponding marked bays at all times
- 24hr max stay scratch card display in marked V bays
- No parking outside of marked bays regardless of permit status
- Only patrol yellow highlighted areas, do not patrol roadways...

DoaM

Kas22 wrote: »

On what post is the link to estoppel by acquiescence on?

Post #113 - it even says that in what you quoted, and even mentions Acquiescence in post #113 itself.