Didn't receive initial fine until court papers arrived

FuzzyDuck1

Just realised this and managed to get back on the laptop to edit! thanks again much appreciated.

Coupon-mad

Is it definitely Council owned land? If you are sure, read this:

https://www.kentonline.co.uk/kent/news/council-issued-motorist-illegal-parking-ticket-197975/

Full report

https://www.lgo.org.uk/assets/attach/4521/REPORT%2017004169%20KENT%20CC.pdf

and by way of understanding what led to this decision:

http://notomob.co.uk/discussions/index.php?topic=4861.0

So, in your new defence, if you are SURE this is Council owned, add a point straight after your #6:

6.1. Even if the Court believes that a private parking firm has landowner authority, this is void where land is Council owned, as is the entire premise of running the site under contract law, 'as if it were private land'. This is supported by a January 2019 decision by the Local Government Ombudsman, whereby Kent County Council were forced to pay a motorist £100 in compensation for issuing a private parking ticket illegally, and allowing their contractor to tell the victim registered keeper that they were liable.

6.1.1. The Ombudsman found as fact, that the Council had allowed to be issued, so called 'contractual' charge notices from a private parking contractor, operating unlawfully on public land, which is against Council decriminalised parking enforcement rules and against the will of Parliament and that of the Department for Transport.

6.1.2. The authority for this contention flows from a letter dated 16th September 2014, addressed to all Local Authorities from the Parliamentary Under Secretary Of State Robert Goodwill MP, and in addition, the fact that Parliament excluded Council owned land of any type, from the 'keeper liability' provisions of the Protection of Freedoms Act 2012, Schedule 4 (the POFA).

6.1.3. Mr Goodwill asserted to all Parking Managers in England with Civil Parking Enforcement powers: ''although you may think the land is "unregulated" by virtue of revoking the parking orders made under the Road Traffic Regulation Act 1984 (RTRA), I am of the view that the land remains regulated because under Section 32(1)(a) of the RTRA, a Council retains the status of a Local Authority providing off-street parking places.'' So serious is this matter, that Wycombe Council was banned from DVLA access for some two years until recently, for withdrawing their off-street parking operations from the parking enforcement framework in the Traffic Management Act 2004 (TMA) so that enforcement was to be carried out through contractual terms and conditions as if the car parks were privately owned. A Judicial Review went against the Council, so the issue was investigated at the highest level.

6.2. The Defendant puts the Claimant to strict proof that the operation they are running at this site is not on all fours with the above unlawful situation, and/or that the land in question is not owned by a Traffic Enforcement Authority as defined in the POFA. To use the Ombudsman's words, based upon his careful and considered interpretation of the explanatory notes for Schedule 4 of the POFA, it is ''irrelevant'' whether or not the Council have a current Traffic Management or Parking Places Order relating to the land. There is no mechanism to hold a registered keeper liable, and 'private' parking tickets cannot be issued on this basis on such land.

FuzzyDuck1

Hi Coupon-mad,

In June 2018 there was a newspaper article informing our residents that our local coucil had purchased the land as a long term investment for the town and that NCP are managing the land through a Long Term Lease...... Does this make any difference>? Also plastered all over our local council website it warns us that this car park in question is now managed by NCP and operate 24 hrs per day...

FuzzyDuck1

Tamworth Borough Council buys Gungate car park in bid to regenerate town centre - https://www.birminghammail.co.uk/news/local-news/redevelopment-plans-tamworth-car-park-14839511?utm_source=sharebar&utm_medium=email&utm_campaign=sharebar

FuzzyDuck1

Sorry to add onto this but from what i have read and have understood from the above articles supplied by Coupon-Mad regarding Council owned land... there seems to have also been a major breach of Data Protection as NCP have requested my data through the DVLA ( i have proof of this through the DVLA as i requested it). In this instance, do i counter-claim for this breach on my Amended Defence or go through a solicitor with regard to this matter seperately?

Coupon-mad

In this instance, do i counter-claim for this breach on my Amended Defence or go through a solicitor with regard to this matter separately?

I wouldn't do either. Overly complicated, and might not succeed.

Don't pay any solicitor or company, who would not be able to help you as much as we can here, as we do this all the time. And you can't reclaim solicitor's fees - unless your household policy includes free legal cover?

NCP had the reasonable belief that they can obtain your data under KADOE rules, and it seem they were there first, before the Council bought it?

I would contact the Council citing Freedom of Information, and ask for details of the 'long term lease to operate the car park' that the article talks about.

And add a second question, does this mean that NCP are in possession by way of leasehold title in the land?

The word 'lease' is not clear in that article, in my view!

FuzzyDuck1

Hi, Thank you. I shall do that first thing in the morning.

From the articles and Ombudsman article you sent, in particular.....

"Even when a private parking firm has landowner authority, this is void where land is Council owned, as is the entire premise of running the site under contract law, 'as if it were private land'. This is supported by a January 2019 decision by the Local Government Ombudsman. The authority for this contention flows from a letter dated 16th September 2014, addressed to all Local Authorities from the Parliamentary Under Secretary Of State Robert Goodwill MP, and in addition, the fact that Parliament excluded Council owned land of any type, from the 'keeper liability' provisions of the Protection of Freedoms Act 2012, Schedule 4 (the POFA)

Wouldn't that override any contractual agreement NCP may have with TB Council?

Coupon-mad

Yes, but if they have leasehold title then they are the owners with possession, with some rights over the land.

Hence why it's important to know what the Council mean by the word 'lease'. Might just mean they have 'let' them have a licence to operate, in which case the info I showed you does apply.

FuzzyDuck1

Thanks, I have emailed FOI today.

This is the response so far...........

Freedom of Information Act 2000 – Request for Information



Thank you for your request for information regarding the purchase of the Tamworth Gungate Land. Your request was received on 26th February 2019 and I am dealing with it under the terms of the Freedom of Information Act 2000.



The request maybe subject to exemptions which the Authority is entitled to apply, we will inform you if exemptions apply to this particular request.



In some circumstances a fee may be payable and if that is the case, I will let you know. A fees notice will be issued to you, and you will be required to pay before we will proceed to deal with the request.

FuzzyDuck1

Coupon-mad wrote: »

Yes, but if they have leasehold title then they are the owners with possession, with some rights over the land.

Hence why it's important to know what the Council mean by the word 'lease'. Might just mean they have 'let' them have a licence to operate, in which case the info I showed you does apply.

Can i not obtain this information through the Commercial Land Registry or would the information provided not stipulate this information? From my understanding, if a title has passed under Lease this would still show on the commercial land registry?