BWLegal

Beerkelly

Firstly MP's have responded favourably and I have also complained to the land owner which is currently Tamworth Borough council 'TBC'- see news link on Tamworth council website under /Council-buys-Gungate-site

They think that the claimant has legal rite however that was based on them being BPA members and not had clear contract eveidence of this. TBC have owned land since 2018 in my period of PCN and previously the land was owned by Henry Boot Developments - so we will need to see the original contract which may need to wait until court evidence from claimant.

There are also definate issues with BPA compliant signage and ANPRs (which are also not apprroved under Town and Country planing either- now being addressed ).

Feel that this is all coming together nicely and good cross referals to Legal Beagle forum plus the summary of what is required for a sucessful case on here.

Coupon-mad

In regards to the two claims -I was aware of the other post however - check out BPA Code of Practice 2018 v7 APPENDIX C SCHEDULE 4 OF THE PROTECTION OF FREEDOMS ACT 2012 RECOVERY OF UNPAID PARKING CHARGES 7 (3) The notice must relate only to a single period of parking specified under subparagraph (2)(a) (but this does not prevent the giving of separate notices each specifying different parts of a single period of parking).

LOL! I know that the POFA says - some of us were reading it before it was even enacted when it was first going through as a Bill and we pored over every word, in 2011/12!

All that wording above means, is that each parking charge needs a separate NTK.

It does not allow a PPC who have issued, say, 20 PCNs against one person at the same location/same car, to get away with umpteen dozen claims, one per PCN, even when the facts are the same.

Clearly an abuse of court time!

The wording I gave you was written by bargepole, who is legally qualified.

Should the letter go in my defence now or witness statement or both?

Letter? What? You mean wording? In both, and as a covering letter with the DQ - say this about consolidating the claims at every stage until a Judge notices it.

Beerkelly

Hi Coupon-mad and Umkomass
Please see my defence statement below for consideration- Note :I am also considering a counterclaim under the Unfair Contract Tems Act 2008 - this depends if the court deems that a contract was in existence?

IN THE COUNTY COURT

CLAIM No: Fxxxxxx8

BETWEEN:

Nxxxx Cxx Pxxx Ltd (Claimant)

-and-

Mr. xxxxx (Defendant)

________________________________________
DEFENCE
________________________________________
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
The facts are that the vehicle, registration Kxxxx , of which the Defendant is the registered keeper, was parked at Tamworth Gungate Car park on the date of Sunday xx September 2018 between 16:16 and 18:38 in a marked bay nearest to the shopping street exit between. The NCP Car park is surrounded by and in local vicinity of council owned and run Pay and Display “PAD” carparks which are know to have no charges during the following periods - after 6pm on weekdays and on Sundays and Bank Holidays. The section of this land believed to be leased by the claimant is owned by Tamworth Borough Council “TBC” and was not clearly marked as Private Land and the defendant believed that the many legible TBC signs placed all around the site where in force at the time of the alleged breach. Therefor the claimant’s case is believed to be to be entrapment as the claimant has not followed the BPA approved Operator Scheme Code of Practice V7 2018 strictly and they are in breach of the Unfair Trading Regulations 2008.

2. The claimant is understood not to be the Land Owner of the Gungate Car Park and the defendant needs to see upto date assigned Rights from the land owner namely Tamworth Borough Council for the Claimant to enforce via litigation as in the case of Vehicle Control Services Vs Mr R Ibbotson 16th May 2012 and as per BPA approved Operator Scheme Code of Practice V7 2018 7.2 – BPA terms and conditions , Protection of Freedoms Act 2012 (POFA), including Schedule 4 section 5.

3. The Claimants signage is misleading as it infers that they are authorised by the British Parking Association ‘BPA’ “we’re part of the Approved Operator scheme authorised by the British Parking Association” this is a misrepresentation of authority as the BPA is an Accredited Trade Association and not a regulated body and is therefore not in place to authorise any actions relating to the contract performance of the operator or subsequent litigation. Under Consumer Protection from Unfair Trading Regulations 2008 schedule 2-4 Miss leading Actions

4. The related Car Park is accessed by claimants vehicle and as a moving vehicle and the entrance signs are respectfully signs that have the greatest influence in the defendant accepting the contract of the claimant . The signage in place is not contain adequate statements and is not of suitable legibility. The BPA code 2018 states that the it must be shown that the ‘land is private; and the operator is relying on contract law which can be reviewed by the defendant at a specific clear location. The signage also fails to adhere to the required font clarity and legibility from the vehicle drivers line of sight.

5. It is further understood that the claimants signage and ANPR Cameras are illegally erected without prior planning permission from the Local Authority under Class 2, schedule 3 of the Town and County Regulations 2007.

6. The Court is invited to take note that the Claimant has issued two claims, numbers FXXXXXXX and FXXXXXXX, against the Defendant at or around the same date, and with substantially identical particulars. The facts of these cases are duplicated in every respect (Claimant, Defendant, location, parking charge breach allegation, and added unrecoverable 'debt collection' and/or 'legal' costs for each case, that the Claimant did not in fact ever incur). It is submitted that this constitutes an abuse of process, making me potentially liable for two instances of issue fees, solicitor costs, and hearing fees (as well as the 2 x £100 maximum penalty (excessive charge) and legal costs £60 x 2 attempt at double recovery that is a feature of BW Legal claims). This runs contrary to the overriding objective of CPR 1.1, the disposal of cases justly and at proportionate cost. The Court is invited to consolidate the claims to be determined at a single hearing, and vacate the other hearing, and I trust that the Judge will apply appropriate sanctions against the Claimant.

7. In summary, it is the Defendant's position that the claim is made without right, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date
.
Your assistance in the above would be appreciated.

Coupon-mad

Typo:

Miss leading Actions

should be misleading

...and this makes no sense to me, and gives away the DEFENDANT was driving:

4. The related Car Park is accessed by claimants vehicle and as a moving vehicle and the entrance signs are respectfully signs that have the greatest influence in the defendant accepting the contract of the claimant . The signage in place is not contain adequate statements and is not of suitable legibility.

You have nothing about this being not 'relevant land' if it is Council owned (are you sure?) and thus, the Claimant cannot be held liable because liability cannot be transferred to the keeper, on land that is under the control of, or owned by, a Council/Traffic authority.

Here's an excerpt of a defence I wrote last week for a person whose PCN was on Council land:

4. The charge and claim are unfounded. The Claimant has no right to pursue a charge under contract/breach of contract on this land. They are attempting to pursue a registered keeper using an incorrect citation of Schedule 4 of the Protection of Freedoms Act 2012 (the POFA).

4.1. The POFA only applies to land that falls within its definition of 'relevant land'. It does not apply to public land provided or controlled by a traffic authority. The exclusion under Schedule 4, section 3 of the POFA does not say it is restricted to where a Council is acting as a traffic authority. The Department for Transport published 'Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012' which also suggests this is not relevant. The DFT say the provisions are intended to apply only on private land and that public highways are excluded, as well as all public land provided or controlled by a local authority.

4.2. The Council owns, provides and controls this land. The Council is also a traffic authority. This means the Claimant could not use the POFA to justify a Parking Charge Notice, nor mislead a registered keeper by stating that the recipient of the letters was liable for the charge. The Defendant avers that the Council did not use the correct process to issue a parking penalty to the driver under their statutory powers and the Local Government Ombudsman (LGO) has recently made a finding against Kent County Council in a comparable complaint case (reference number: 17 004 169) on 26th November 2018. The LGO stated:

''This is significant fault. This affects other members of the public too and we therefore find it appropriate to consider any wider injustice...'' and it ordered that Council to stop issuing parking penalties at Lullingstone Country Park and at its other parks that use the same process, until it had put in place appropriate arrangements.

4.3. It follows that the 'contractual charge' in this case was not properly given by the Claimant and is unrecoverable. Local authorities that are endowed with statutory powers as traffic authorities must not abdicate their responsibilities as a traffic authority to the private parking industry. By doing so, traffic authorities have effectively sanctioned predatory ticketing practices being imposed by the private parking industry on publicly owned land and as a result they are sanctioning the victimisation of those they are elected to serve.

4.4. This position is supported by evidence that the Defendant shall adduce, including a letter sent to all Local Authorities in 2014 as a consequence of various councils flouting of the law. Robert Goodwill MP, Parliamentary Under Secretary of State for Transport, wrote to all parking managers in England with Civil Enforcement Powers setting out the Department for Transport's position:
''Part 6 to the TMA was enacted in 2008 with the aim of improving local authority on-street and off-street parking enforcement arrangements by enabling local authorities to take effective enforcement action, but to protect the motorists when a mistake has been made by a local authority. Any intention to operate outside this statutory regime would clearly go against the will of Parliament, Government policy and the expectations of local electorates.''

4.5. This was followed by a letter from the DVLA dated 22 January 2015, which reiterated: ''Any attempt by a traffic authority to declare the land 'unregulated' by either removing existing Traffic Regulation Orders (TROs) or by attempting to hand over its regulation of the land to its agents must be regarded as unlawful''.

Beerkelly

Hi Coupon-Mad,
Thank you for your reply.
In order to understand this I will need to send you the council's original response to my letter which I don't want to be public on here. Basically the land was originally sold by the council to a developer (circa 2009) the car park was established in 2011 under previous landowner and the Council repurchased the Land in 2018 which was already under lease as a car park respective planning permission, The Council say that it is independent of them and that it is operating independently as per under BPA terms.
Thanks,

P.S. I will send you a PM link to the respective files.

Beerkelly

Hi Coupon-mad
I see that I am unable to PM you?.
NCP have legal rights to the land enabling them to charge penalties to the public

Tamworth Borough Council acquired the site in question in 2018 with NCP already benefitting from a long lease to operate a pay and display car park. The Council is not involved in operational matters relating to the car park with all operational matters being the responsibility of the tenant. I can however confirm that the Council was aware that NCP had a tenancy and was operating a pay and display car park on the site at the time the land was acquired.
There is nothing from a parking enforcement perspective with regards to this land that precludes them from charging penalties. NCP as the operator in question is a member of the British Parking Association https://www.britishparking.co.uk/BPA-Approved-Operators and therefore conforms to the correct appeals process

I have subsequently referred TBC to BPA Guidelines version 11 2018 7.2 - and await their response.
Thanks

Coupon-mad

I don't take pm's, sorry.

There is nothing from a parking enforcement perspective with regards to this land that precludes them from charging penalties.

Yes there is - the fact that private firms can't issue penalties would be one!

Beerkelly

Hi Coupon-mad - I will amend my defence to include the points raised in your earlier defence above which shows that the land is not relevant land and precludes the claimant from using POFA part 4?

Coupon-mad

I would try that, yes, because it's the Claimant's claim to prove.

You need to search the forum to read the Kent Council LGO complaint case to read what the LGO said about Councils acting as if they can let private firms run their owned land as if it were subject to contract law.

Yours is an odd case, as the Council bought the land when NCP was already operating their little protection racket-style game, but the LGO's complaint decision makes it clear that keepers cannot be held liable on ANY Council owned land, and it is irrelevant whether the Council are providing the spaces and acting in the capacity of a traffic authority (they just have to 'be' a traffic authority - and they very likely will be).

Anyway try it all and research it well.

Beerkelly

Hi Coupon-mad
I need to get my defence in by 23/4 so not much time
Please can you let me have copies of the 2014 Local Authorities Letters and the DVLA 2015 letter or point me in the right direction?
In the background I think that I should also complain to LGO as clearly TBC are trying to devolve responsibility for the car park?
Many Thanks