ANPR Overstay - Advertisement Consent Refused by Local Council

KeithP

Just to expand a little on Fruitcake's comment...

Evidence must be sent on a 'durable medium' to both the Claimant and the Court.

A 'durable medium' is something that once sent cannot be altered by the sender.

In the case of video, that means you are effectively limited to either a CD/DVD, or memory stick/card.

A video file as an attachment to an email is another example of a 'durable medium', but you might need the explicit agreement of the court and the claimant to accept evidence that way.

A link to a Dropbox file, a Youtube file, or indeed a link to anywhere, is not acceptable as you could alter that file after the link has been sent.

Coupon-mad

Your WS can be MUCH shorter!  You already had all the stuff about Abuse of Process in your defence, so you can just put in the far shorter WS this section:

Abuse of process - the quantum and unfair terms and notices

(number).  The Claimant is attempting double recovery, having inflated the quantum by £60, described misleadingly as as 'debt collection costs'.  My defence covered this in depth and is repeated.  The court is invited to find the quantum claimed is false and an abuse of process - see exhibit number xx - transcript of the Approved judgment in Britannia Parking v Crosby & anor (Southampton Court 11.11.19) and exhibit number xx  - the Consumer Rights Act 2015 Schedule 2.   Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA at Schedule 2.

(number).   My case is the same, and this Claimant knew or should have known, that to demand a global sum of £160 is unrecoverable due to the POFA 4(5), the ParkingEye v Beavis case paras 98, 193 and 198 and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10, 14 and 18 (the latter failure being an abject disregard for a trader's obligations under consumer law and for their own industry Code of Practice).

Have you got the new (longer) statement of truth as per the NEWBIES thread?  I didn't check...

Fruitcake

You could make the abuse of process a stand alone supplementary witness statement.

With regards the overpayment, the judge in NCP vs HMRC stated that this was taxable and treated as part of the parking operator's income. You could therefore argue that this covered any alleged overstay, or should have been deducted from any monies allegedly owed.

With regards to the lack of advertising consent, I would argue that this breaches Schedule 4 para 12 of the PoFA 2012.

"12(1)The fourth condition is that any applicable requirements prescribed under this paragraph were met at the beginning of the period of parking to which the unpaid parking charges relate.

(2)The appropriate national authority may by regulations made by statutory instrument prescribe requirements as to the display of notices on relevant land where parking charges may be incurred in respect of the parking of vehicles on the land.

(3)The provision made under sub-paragraph (2) may, in particular, include provision—

(a)requiring notices of more than one kind to be displayed on any relevant land;

(b)as to the content or form of any notices required to be displayed; and

(c)as to the location of any notices required to be displayed.

(4)Regulations under this paragraph may—

(a)include incidental, supplementary, transitional, transitory or saving provision;

(b)make different provision for different areas or purposes."

I would suggest that the council planning department, and certainly the Town and Country Planning Act constitues a statutory instrument.

What did the DVLA say when you complained to them?

1505grandad

"6.1 I understand from correspondence received from the Claimant, the Claimant’s case relies upon the signage at the site constituting a “contract” between myself and the Claimant."

Should that say  -  "...................constituting a "contract" between THE DRIVER and the Claimant".

Coupon-mad

You could make the abuse of process a stand alone supplementary witness statement.

That's not needed due to the defence length.  It's already there in the defence and there's no need to repeat it.  The supplementary WS tactic should be used less now and will almost die out this year, it was and is just a stopgap for people with shorter defences.

Clivero

Thank you to everyone for their comments again.  I was burning the midnight oil last night working on the amendments which everyone has suggested.

I have tried to make the WS shorter by removing the duplication's which were covered in the DS, apologies if I have misinterpreted the comments in any way.

Just to answer C-M's question re the (longer) statement of truth, I was following the newbies thread, along with other posters examples (special mention to @keypulse and the examples they provided). But trying to re-write this into th specifics for my case.

The updated WS I now have is.

Clivero

IN THE COUNTY COURT AT XXXXXXX
CLAIM No: XXXXXXX
BETWEEN:
National Car Parks Limited (Claimant)
-and-
XXXXXXX (Defendant)

________________________________________
Witness statement
________________________________________

1. I, PXXXXXXXX of XXXXXXXXX am the defendant against whom this claim is made. I represent myself as a litigant-in-person, with
no formal legal training. I have carried out a good deal of research in preparation for this case, however I trust the Court will excuse me if my presentation is less than professional. Everything in the following statement is true to the best of my knowledge and belief.

2. I deny that the Claimant is entitled to relief in the sum claimed, or at all and my defence is repeated.

3. In my statement I shall refer to exhibits within the evidence bundle supplied with this statement, referring to page and reference numbers where appropriate. I will refer to this
bundle as EB01.

4. Sequence of Events

4.1 On the morning of the 20th of January 2019, the driver drove into the entrance of the car park in question. They immediately turned right, due to lack of available spaces located at the front of the Crawley Boulevard car park, and parked into an available space towards the back of the car park. (EB01 - Page 1)

4.2. Following on from dealing with a young child passenger within the car, the driver then proceeded to the nearest ‘Pay and Display' machine. Upon inspection the 'Pay and Display' was not issuing any change, meaning the driver returned to the car in an attempt to find the correct coins. The driver then returned to the 'Pay and Display' and purchased a ticket for £3.00. (EB01 - Page 2)

4.3 Upon returning to the vehicle at the end of the paid for period of parking, it was noted by the driver that the car park had now become increasingly busy, due to the large number of cars waiting within the driving lane for free spaces to become available. Due to the design of the Crawley Boulevard Car Park, whereby there is only one entry/exit as well as a single lane for all traffic, the ability to exit the car park in a timely fashion was diminished as the one way system had now become bottlenecked with other waiting vehicles.

5. Later Events

5.1 On 08th February 2019, after obtaining my details from the DVLA, I received a Notice To Keeper from The Claimant, demanding a payment of £100 within 28 days.

5.2 On 12th February I responded to the Claimant to appeal the charge, and believed that the overpayment of £3.00, against the tariff of £2.40 charged for 2 hours, would cover the alleged overstay the Claimant believed occurred on the 20/01/2019 at the Crawley Boulevard West car park.

5.3 On the 28th February 2019 the Claimant rejected my appeal stating the amount being sought was 'clearly communicated by the signage on the site'.

5.4 Upon further research into this matter, due to the numerous 'invoices' received from the Claimant or one of its representatives, I have since discovered that the Claimant was not in receipt of the legal 'Advertisement Consent' for any of its signage from Crawley Borough Council on the 20th January at the Crawley Boulevard West Car Park. The Claimant has actually been specifically named in the houses of Parliament by the Crawley Member of Parliament (Henry Smith), as erecting signage without the correct planning permission within certain Crawley car parks. Mr Smith used this example on the 17th January 2019, to gain assurances from other Members of Parliament that the 'Parking Code of Practice Bill' would receive royal assent as soon as possible at the that particular time.

5.5 Further more the Claimants lack of 'Advertisement Consent' at the Crawley Boulevard West car park, received national press coverage within 'The Times'  newspaper on Sunday 31st March 2019 under the headline 'NCP's unfair penalties get townsfolk all revved up'.

5.6 It is also now disputed that the timestamps generated on the ticket from the 'Pay and Display' were correctly synchronised with that APNR machine in use on the day of the alleged contravention. The time stamp displayed on the parking ticket purchased by the driver, states that the ticket was issued at 10:00 am that morning. However the Claimant's own APNR machine specifies my vehicle as entering the car park at 09:59:05. As detailed previously within section 4.2, with the movements of the driver prior to purchasing the the parking ticket, it is disputed that the ticket could not have physically been purchased within 55 seconds of my vehicle entering the car park, dealing with a young child, obtaining suitable change, and purchasing the parking ticket.

5.7 In section 13.4 of the BPA CoP (Version 7 - January 2018), it states that grace periods should be given when arriving and leaving the car park. As this was at the start of the New Year in 2019, a large number of retailers within the town had sales on at the time. This made exiting the car park in a timely fashion incredibly difficult, due to the number of vehicles waiting for a parking space in the single lane, as well as causing a bottleneck at the single entry/exit point of the car park.

5.8 While I fully appreciate the need for parking control on private land, I do not appreciate the apparent business tactics of the Claimant whereby they insist people going about their daily business have entered into some kind of vague “contract” with them. Especially when the Claimant was fully aware that their own planning application for the required 'Advertising Consent' for the signage used at the Crawley Boulevard West Car park had been refused by Crawley Borough Council less than 4 weeks previously on the 13th December 2018. Nor do I appreciate the tactics of BW Legal who have sent me many harassing and distressing letters, making veiled threats towards my credit rating and even my employability.

6. Criminal Conduct

6.1 I understand from correspondence received from the Claimant, the Claimant’s case relies upon the signage at the site constituting a “contract” between the driver and the Claimant. However the Claimant is under duty to the court to provide full and fair disclosure by informing it of all relevant issues. The Claimant has failed to advise the Court that a criminal offence was being committed by the display of its signage, as the Claimant's Advertising consent application was refused on 13th December 2018. By virtue of Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended), it is a criminal offence to display this kind of advertisement in contravention of the Regulations.

6.2 The Claimant was fully aware that their initial 'Advertisement Consent' for planning permission was Refused by Crawley Borough Council on the 13th December 2018, and was committing a criminal offence due to not being in receipt of the required permission for displaying their signage. By virtue of Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended) it is a criminal offence to display this kind of advertisement in contravention of the Regulations. The penalty on conviction for the offence is at level 4 on the standard scale (current maximum £2,500) plus £250 for each day that the offence continues. (EB01 - Page 3 - 4)

6.3 The Claimant only received retrospective planning permission from Crawley Borough for their signage located at the Crawley Boulevard West car park on the 24th June 2019, some 5 months after the alleged contravention. (EB01 - Page 5 - 6)

6.4 My defence covered in depth the case of Andre Agassi v S Robinson (HM Inspector of Taxes), (B/3). Whilst not wholly aligned to the issues in this case it has been produced because of the principle it extols that no one should profit from their unlawful conduct. As in this case it was not lawful for the Claimant to have in place its signs upon which it relies for the formation of an asserted contract with the Defendant.

7 Abuse of process - the quantum and unfair terms and notices

7.1  The Claimant is attempting double recovery, having inflated the quantum by £60, described misleadingly as 'debt collection costs'.  My defence covered this in depth and is repeated.  The court is invited to find the quantum claimed is false and an abuse of process - (EB01 - Page 7 - 13 - transcript of the Approved judgement in Britannia Parking v Crosby & anor - Southampton Court 11.11.19) and the Consumer Rights Act 2015 Schedule 2. Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA at Schedule 2. (EB01 - Page 14)

7.2   My case is the same, and this Claimant knew or should have known, that to demand a global sum of £160 is unrecoverable due to the POFA 4(5), the ParkingEye v Beavis case paras 98, 193 and 198 and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10, 14 and 18 (the latter failure being an abject disregard for a trader's obligations under consumer law and for their own industry Code of Practice).

8 The Protection of Freedom Act 2012 is against this Claim

8.1 The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at para 12 sub- paragraph 2 states that the "The appropriate national authority may by regulations made by statutory instrument prescribe requirements as to the display of notices on relevant land where parking charges may be incurred in respect of the parking of vehicles on the land". The Claimant was not in receipt of the necessary 'Advertisement Consent' at that point in time.

9 Unreasonable Behaviour:

9.1 I contend that The Claimant has behaved unreasonably in bringing this case against me to the court. Their actions and the actions of BW Legal have brought me considerable vexation and distress. As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable amount of time researching case law on-line, processing and printing evidence and preparing both my defence and this witness statement. I have no intention of claiming for each and every one of the hours I have spent on this, but will be asking for a consideration to cover the hours used in preparation for my defence, as detailed in my costs schedule.

9.2 The Claimant was made aware I contested their charge and they were also very aware that they did not have the correct 'Advertisement Consent' planing permission, due to the negative national coverage that they had received at the time for this particular car park. They, or any of their representatives, have never disclosed this fact when sending correspondence after the alleged contravention occurred.

9.3 The Claimant received retrospective planning permission for their signage on the 24th June 2019. This shows they were fully aware their signage was committing a criminal offence. However they still pressed forward with their case against me.

I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

I believe that the facts stated in this Witness Statement are true.

Umkomaas

That's the old Statement of Truth. Google to get the latest, essential, version. 

Coupon-mad

It's also in the NEWBIES thread where I told you it is!  (I'm currently editing the defence template to include it).

Clivero

Thanks again all, missed that update on the latest version. The Statement of Truth has been amended, so the latest draft version is:

IN THE COUNTY COURT AT XXXXXX
CLAIM No: XXXXXXXX
BETWEEN:
National Car Parks Limited (Claimant)
-and-
XXXXXXXXX (Defendant)

________________________________________
Witness statement
________________________________________

1. I, XXXXXXXXX am the defendant against whom this claim is made. I represent myself as a litigant-in-person, with
no formal legal training. I have carried out a good deal of research in preparation for this case, however I trust the Court will excuse me if my presentation is less than professional. Everything in the following statement is true to the best of my knowledge and belief.

2. I deny that the Claimant is entitled to relief in the sum claimed, or at all and my defence is repeated.

3. In my statement I shall refer to exhibits within the evidence bundle supplied with this statement, referring to page and reference numbers where appropriate. I will refer to this
bundle as EB01.

4. Sequence of Events

4.1 On the morning of the 20th of January 2019, the driver drove into the entrance of the car park in question. They immediately turned right, due to lack of available spaces located at the front of the Crawley Boulevard car park, and parked into an available space towards the back of the car park. (EB01 - Page 1)

4.2. Following on from dealing with a young child passenger within the car, the driver then proceeded to the nearest ‘Pay and Display' machine. Upon inspection the 'Pay and Display' was not issuing any change, meaning the driver returned to the car in an attempt to find the correct coins. The driver then returned to the 'Pay and Display' and purchased a ticket for £3.00. (EB01 - Page 2).

4.3 Upon returning to the vehicle at the end of the paid for period of parking, it was noted by the driver that the car park had now become increasingly busy, due to the large number of cars waiting within the driving lane for free spaces to become available. Due to the design of the Crawley Boulevard Car Park, whereby there is only one entry/exit as well as a single lane for all traffic, the ability to exit the car park in a timely fashion was diminished as the one way system had now become bottlenecked with other waiting vehicles.

5. Later Events

5.1 On 08th February 2019, after obtaining my details from the DVLA, I received a Notice To Keeper from The Claimant, demanding a payment of £100 within 28 days.

5.2 On 12th February I responded to the Claimant to appeal the charge, and believed that the overpayment of £3.00, against the tariff of £2.40 charged for 2 hours, would cover the alleged overstay the Claimant believed occurred on the 20/01/2019 at the Crawley Boulevard West car park.

5.3 On the 28th February 2019 the Claimant rejected my appeal stating the amount being sought was 'clearly communicated by the signage on the site'.

5.4 Upon further research into this matter, due to the numerous 'invoices' received from the Claimant or one of its representatives, I have since discovered that the Claimant was not in receipt of the legal 'Advertisement Consent' for any of its signage from Crawley Borough Council on the 20th January at the Crawley Boulevard West Car Park. The Claimant has actually been specifically named in the houses of Parliament by the Crawley Member of Parliament (Mr Henry Smith), as erecting signage without the correct planning permission within certain Crawley car parks. Mr Smith used this example on the 17th January 2019, to gain assurances from other Members of Parliament that the 'Parking Code of Practice Bill' would receive royal assent as soon as possible at the that particular time.

5.5 Further more the Claimants lack of 'Advertisement Consent' at the Crawley Boulevard West car park, received national press coverage within 'The Times'  newspaper on Sunday 31st March 2019 under the headline 'NCP's unfair penalties get townsfolk all revved up'.

5.6 It is also now disputed that the timestamps generated on the ticket from the 'Pay and Display' were correctly synchronised with that APNR machine in use on the day of the alleged contravention. The time stamp displayed on the parking ticket purchased by the driver, states that the ticket was issued at 10:00 am that morning. However the Claimant's own APNR machine specifies my vehicle as entering the car park at 09:59:05. As detailed previously within section 4.2, with the movements of the driver prior to purchasing the the parking ticket, it is disputed that the ticket could not have physically been purchased within 55 seconds of my vehicle entering the car park, dealing with a young child, obtaining suitable change, and purchasing the parking ticket.

5.7 In section 13.4 of the BPA CoP (Version 7 - January 2018), it states that grace periods should be given when arriving and leaving the car park. As this was at the start of the New Year in 2019, a large number of retailers within the town had sales on at the time. This made exiting the car park in a timely fashion incredibly difficult, due to the number of vehicles waiting for a parking space in the single lane, as well as causing a bottleneck at the single entry/exit point of the car park.

5.8 While I fully appreciate the need for parking control on private land, I do not appreciate the apparent business tactics of the Claimant whereby they insist people going about their daily business have entered into some kind of vague “contract” with them. Especially when the Claimant was fully aware that their own planning application for the required 'Advertising Consent' for the signage used at the Crawley Boulevard West Car park had been refused by Crawley Borough Council less than 4 weeks previously on the 13th December 2018. Nor do I appreciate the tactics of BW Legal who have sent me many harassing and distressing letters, making veiled threats towards my credit rating and even my employability.

6. Criminal Conduct

6.1 I understand from correspondence received from the Claimant, the Claimant’s case relies upon the signage at the site constituting a “contract” between the driver and the Claimant. However the Claimant is under duty to the court to provide full and fair disclosure by informing it of all relevant issues. The Claimant has failed to advise the Court that a criminal offence was being committed by the display of its signage, as the Claimant's Advertising consent application was refused on 13th December 2018. By virtue of Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended), it is a criminal offence to display this kind of advertisement in contravention of the Regulations.

6.2 The Claimant was fully aware that their initial 'Advertisement Consent' for planning permission was Refused by Crawley Borough Council on the 13th December 2018, and was committing a criminal offence due to not being in receipt of the required permission for displaying their signage. By virtue of Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended) it is a criminal offence to display this kind of advertisement in contravention of the Regulations. The penalty on conviction for the offence is at level 4 on the standard scale (current maximum £2,500) plus £250 for each day that the offence continues. (EB01 - Page 3 - 4)

6.3 The Claimant only received retrospective planning permission from Crawley Borough for their signage located at the Crawley Boulevard West car park on the 24th June 2019, some 5 months after the alleged contravention. (EB01 - Page 5 - 6)

6.4 My defence covered in depth the case of Andre Agassi v S Robinson (HM Inspector of Taxes), (B/3). Whilst not wholly aligned to the issues in this case it has been produced because of the principle it extols that no one should profit from their unlawful conduct. As in this case it was not lawful for the Claimant to have in place its signs upon which it relies for the formation of an asserted contract with the Defendant.

7 Abuse of process - the quantum and unfair terms and notices

7.1  The Claimant is attempting double recovery, having inflated the quantum by £60, described misleadingly as 'debt collection costs'.  My defence covered this in depth and is repeated.  The court is invited to find the quantum claimed is false and an abuse of process - (EB01 - Page 7 - 13 - transcript of the Approved judgement in Britannia Parking v Crosby & anor - Southampton Court 11.11.19) and the Consumer Rights Act 2015 Schedule 2. Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA at Schedule 2. (EB01 - Page 14)

7.2   My case is the same, and this Claimant knew or should have known, that to demand a global sum of £160 is unrecoverable due to the POFA 4(5), the ParkingEye v Beavis case paras 98, 193 and 198 and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10, 14 and 18 (the latter failure being an abject disregard for a trader's obligations under consumer law and for their own industry Code of Practice).

8 The Protection of Freedom Act 2012 is against this Claim

8.1 The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at para 12 sub- paragraph 2 states that the "The appropriate national authority may by regulations made by statutory instrument prescribe requirements as to the display of notices on relevant land where parking charges may be incurred in respect of the parking of vehicles on the land". The Claimant was not in receipt of the necessary 'Advertisement Consent' at that point in time.

9 Unreasonable Behaviour:

9.1 I contend that The Claimant has behaved unreasonably in bringing this case against me to the court. Their actions and the actions of BW Legal have brought me considerable vexation and distress. As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable amount of time researching case law on-line, processing and printing evidence and preparing both my defence and this witness statement. I have no intention of claiming for each and every one of the hours I have spent on this, but will be asking for a consideration to cover the hours used in preparation for my defence, as detailed in my costs schedule.

9.2 The Claimant was made aware I contested their charge and they were also very aware that they did not have the correct 'Advertisement Consent' planing permission, due to the negative national coverage that they had received at the time for this particular car park. They, or any of their representatives, have never disclosed this fact when sending correspondence after the alleged contravention occurred.

9.3 The Claimant received retrospective planning permission for their signage on the 24th June 2019. This shows they were fully aware their signage was committing a criminal offence. However they still pressed forward with their case against me.

I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.