Questions about Schedule 4 of POFA

Le_Kirk

Send by e-mail by putting court and claimant e-mail addresses in the "To:" box and that way if one (the court) shows delivered, it will be very hard for the clamant to dispute that you sent it to them as well - amazingly we have read reports on here that some claimants deny having received a defendant's WS

Fruitcake

Add yourself as a recipient. If it arrives in your inbox then on the balance of probabilities the court and the claimant will have received it as well.

ihatetrump

Thank you both.

Now on to the WS - especially my argument on non- relevant land - also an invalid lease potentially? - lack of a witness signature on a Deed.

Fruitcake

Their inclusion of the OPS vs Norma Wilshaw appeal court case doesn't help, but I suggest you have a look at Sections 43 and 44 of the Companies Act 2006. They are both very short and fairly easy to understand.

The judge in the above case said that not having a contract is irrelevant because the landowner would have had something to say about it in the intervening years. That is difficult to argue. It may well be reasonable to assume the PPC has standing to operate on the site and issue PCNs. It is not reasonable however to assume that even if such a contract exists, it authorises the operator to issue court claims in their own name. It would be reasonable therefore to expect such a contract to be produced proving the claimant does indeed have standing to initiate court claims in their own name.
This is especially relevant where the site is non-relevant land because it is owned by a TMA such as a council.

S43 concerns a Simple Contract. This requires someone with express or implied authority to form a contract from each party to sign the contract.
Express authority would be a company owner or officer such as a director or company secretary.
Implied authority would be a position within the company (job description) designated by someone with express authority, or stated in company documents such as its Articles of Association.

S44 deals with the execution of documents. IT sates that for a document to be validly executed it must be signed by two authorised signatories from each party in order for a document to be validly executed. Authorised signatories are defined by the Act as a company director or company secretary, or a director and a witness.

Since no contract between or flowing from the landowner has been produced, it is reasonable to assume on the balance of probabilities that no such contract exists authorising the claimant to issue court proceedings in their own name, otherwise it would have been produced, irrespective of judge's findings in other cases. As such, both S43 and S44 of the Companies Act 006 has been breached. 

ihatetrump

Thanks @Fruitcake - I will dig out the Companies Act and study and edit my WS accordingly.

I uploaded their lease and Management Agreement on my post of 28th June at 9:12am. The Agreement has a missing Appendix and redacted clause (13) which is I have sought to have it removed as evidence from the claimant - do you consider this valid?

Fruitcake

The surname of the person who signed the management agreement, Charles "somebody" has never been an officer of Milton Keynes Development Partnership LLP. This means the agreement fails the strict requirements of S44 of the Companies Act 2006, and part of S43 of the Act.
Milton Keynes Council are both a director of the above LLP as well as the landowner.
Therefore, in order for a Chief Exec (who you would think should be capable of printing their name and job position in the correct spot on such an important document) to have the authority to sign a contract with another party, they must have implied authority from Milton Keynes Council.
No such proof of implied authority has been provided. It is therefore reasonable to assume this person whose name is illegible, and who is not an officer of either the LLP or the landowner, did not have implied authority to sign a contract in accordance with Section 43 of the Companies Act 2006.

As for the redactions, this is probably reasonable where sensitive financial details are concerned. Other redactions would be unreasonable as determined by the appeal court case of Hancock vs Promontaria.

Have you checked to see if Advertising Consent has been obtained for signage at the site?
Not having it is a criminal offence, a breach of Para 12 of the PoFA, and a breach of the lease between the claimant and the landowner in your case.

ihatetrump

Thanks @Fruitcake - this is an odd one - his name is Charles Macdonald - he signed the 2016 Accounts of MKDP as the Chief Executive - although Companies House have only MK Council and a Peter Marland as officers at the time this 'lease' was signed. Is there (in your opinion) any significance that the lease was signed as Deed, but not witnessed, which is I believe a legal requirement of a Deed?

Where do I check out advertising consent please?

Le_Kirk

Local council planning dept. should be able to help with advertising consent.

ihatetrump

Just checked out the MK planning portal - only one advertising consent (ever) at this post code - for signage in 2018 - titled as Advertisement consent for signage above the new main entrance created at 'The Old Bus Station' Nothing else. - good advice @Fruitcake - now how to weave it into my WS....

Fruitcake

I don't know anything about deeds and their requirements, but definitely aver that Charles MacDonald had neither express nor implied authority to sign a contract, thus breaching S43 of the CA 2006.

The display of advertisements is subject to a separate consent process within the planning system. This is principally set out in the Town and Country Planning (Control of Advertisements) (England) Regulations 2007. 
Parking signs larger than 0.3m" need advertising consent. Not having it is a criminal offence, but only the council can pursue this. (No need to mention the last part).

It is also a breach of Schedule 4 of the PoFA 2012, para 12, sub-para (2)

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.

The above T & P Regulations are most definitely a Statutory Instrument, made by a national authority.

The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (legislation.gov.uk)

The Management Agreement states that PLanning permissions etcetera are a mandatory requirement of the agreement.

You aver therefore that no such advertising consent has ever been approved, therefore the planning regs, the PoFA, and the agreement have all been breached.