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Help needed - PCN issued to a resident
SaulGoodman
post Tue, 16 Oct 2018 - 21:22
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Hello all.

This is my first post on here and having spent weeks and weeks reading through the amazing information on this forum, the time has come for me to finally ask for some direct help. I'm sure my situation is similar in nature to others that have posted on here, so I apologise if this is already explained somewhere else.

I'll summarise my situation below:

Back at the start of the year I received three PCNs for 'Not Displaying a Permit' on my vehicle when it was temporarily parked outside my own home. I live in a flat, and the PPC have recently been instructed (within the last few years) to manage the area due to problems with locals using the area for parking at the local hospital.

I replied to the PPC on each occasion explaining I was a resident and asking them to cancel the PCN, but as predicted all of my appeals to them and the IAS have been rejected. I didn't hear anything from them for a while, until a few months ago when I started receiving letters from them and ZZPS requesting payment, with additional charges added. I've followed the usual advice of ignoring these as I know the DCAs are powerless.

I've read through my lease in detail and there is no mention whatsoever of permits nor any restrictions to park anywhere in the estate so I'm pretty confident I have a strong case, and I of course have explained about my rights to park as detailed in the lease, and quoted them the various case law related to similar events (Jopson, Pace, Saaed) but of course they don't want to know. I've even spoken to the landowner directly, who were very helpful, however even they haven't been able to get them to rescind their charges, so here we are.

I'm getting very hacked off with the constant mail and so now really want to take action against the PPC by issuing an LBC (and have drafted one ready), for tortious interference and DPA breaches, however I'm reluctant to actually send this as I'm not sure if it is worded the right way, and whether or not I'll actually have any success, or whether I'd be better off simply ignoring the DCA letters. From reading other threads, I know it is a good idea to send in a DPA claim after successfully defending a claim by the PPC, however I'm contemplating doing it before it gets to that point and having the upper hand.

If anyone would be willing to chip in with any feedback, suggestions or questions, anything is gratefully appreciated. If you need me to upload my draft LBC, please let me know the best way to do so and I will.

Thanks all!

This post has been edited by SaulGoodman: Sun, 21 Oct 2018 - 19:56
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Churchmouse
post Thu, 8 Nov 2018 - 09:12
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QUOTE (SaulGoodman @ Thu, 8 Nov 2018 - 00:11) *
Thanks Churchmouse. Can you advise how I could find out if the LA has taken ownership of the road, is this an FOI request perhaps? I’ve pulled the title deed and register from the Land Registry, which seem to indicate that the original builders who built the plot own the whole estate, and my landlord have taken legal ownership of the various flats and parking spaces, but the actual road is still unclear.

The PPC haven’t said they aren’t the landholder/occupier, only that me and my landlord are not and they won’t divulge who is until court proceedings are issued.

Sorry, chiding you for not doing "due diligence" was a bit harsh. It was (probably) a perfectly reasonable assumption that the roadway was under the same ownership as the rest of the estate (and, to be fair, the fact that it wasn't has also not yet been established).

You can find out if the LA has adopted it, as ostell has described, but unfortunately, that won't tell you who owns it if the council does not. As you appear to have established a rapport with the landowner of the estate, you should ask them to confirm their ownership/non-ownership of the roadway, and if not, who they leased/sold it to. It would be an interesting result if they confirmed that they do own it...

ISTR a story from a year or so ago about an estate roadway being sold to a third party who subsequently attempted to legally "extort" monies from long-time estate residents. I can see why such an entity might not want to be publicly identified.

--Churchmouse
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SaulGoodman
post Thu, 8 Nov 2018 - 11:19
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No worries Churchmouse, I appreciate the support so I’m happy to concede I may have missed a few things, this is all still relatively new territory for me. I’ve reached out to the landlord to see if they know who owns the road but they’re away at the moment so I’m waiting a response. I’ve made enquiries with the LA as well.

I’ll hold fire on posting up the lease until we can establish its wholly relevant. If it transpires that it is this mysterious third party that owns the road, where do I stand with my LBC? Do I retract it, send an amended version, abandon ship?
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SchoolRunMum
post Sat, 10 Nov 2018 - 16:27
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Your planned LBC and claim hinged on this argument:

QUOTE
28. Despite repeated requests to rescind the charges by myself as a resident, as well as a direct instruction from the Landowner, you and your affiliated companies are still requesting payment for the PCNs discussed.

29. You have breached my rights under the Data Protection Act 1998.

30. As a result of your actions, I have suffered damage and significant distress and I will seek an award of damages against you in the sum of £2,730 in respect of the following:

i. Tortious interference with my rights under the Lease (£160, a sum equivalent to the amount you are currently seeking to recover from me); for each PCN issued; a total of £480.
ii. Breaching of my Data Protection Act rights (£750) for each PCN issued, a total of £2,250.

31. I rely on two significant authorities in support of my claim, which are Vidal-Hall v Google Inc [2015] EWCA 311 and Halliday v Creation Consumer Finance Ltd [2013] EWCA Civ 333. In Vidal-Hall, it was held by the Court of Appeal that compensation was payable upon the fact of breach, and that it was not necessary to quantify a direct pecuniary loss. In Halliday, the Court of Appeal held that a compensatory sum of up to £750 was deemed ‘appropriate and sufficient’.

32. Both of the above cases arose as a result of material breaches of the Data Protection Act 1998 by the respective Defendants, and can be considered to provide binding precedents for my own situation. I believe that by way of the multiple breaches, and unlawful processing of my data to two third-parties, (ZZPS and QDR Solicitors Ltd) on three separate occasions, this amounts to significant distress and is therefore of similar nature to the Halliday case.

33. I am now considering whether to issue proceedings against you. Should you in the meantime issue proceedings against me, I will make a counterclaim against you in the above terms. I will also seek costs against you (court fees plus my time at £19 per hour).


So, whether you press ahead with that will depend on whether they are interfering with your lease and whether they had reasonable cause to get your data from the DVLA based upon where the car was parked, who owns that land and what the signs there say. And whether this is an area where your lease actually grants you any rights that override those signs.

Does your lease clearly demarcate the boundaries of the estate and is that road included?

QUOTE
I've even spoken to the landowner directly, who were very helpful, however even they haven't been able to get them to rescind their charges, so here we are.
You need to stop speaking to them on the phone, and ask instead by email, for their position on the matter and to confirm whether they support PCNs being issued to residents, and whether they have anything - e.g. in the head lease, or in their contract with the scumbag parking firm - that shows whether these roads are included in the enforcement area, or not.
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SaulGoodman
post Sat, 10 Nov 2018 - 19:30
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QUOTE (SchoolRunMum @ Sat, 10 Nov 2018 - 16:27) *
Your planned LBC and claim hinged on this argument:

QUOTE
28. Despite repeated requests to rescind the charges by myself as a resident, as well as a direct instruction from the Landowner, you and your affiliated companies are still requesting payment for the PCNs discussed.

29. You have breached my rights under the Data Protection Act 1998.

30. As a result of your actions, I have suffered damage and significant distress and I will seek an award of damages against you in the sum of £2,730 in respect of the following:

i. Tortious interference with my rights under the Lease (£160, a sum equivalent to the amount you are currently seeking to recover from me); for each PCN issued; a total of £480.
ii. Breaching of my Data Protection Act rights (£750) for each PCN issued, a total of £2,250.

31. I rely on two significant authorities in support of my claim, which are Vidal-Hall v Google Inc [2015] EWCA 311 and Halliday v Creation Consumer Finance Ltd [2013] EWCA Civ 333. In Vidal-Hall, it was held by the Court of Appeal that compensation was payable upon the fact of breach, and that it was not necessary to quantify a direct pecuniary loss. In Halliday, the Court of Appeal held that a compensatory sum of up to £750 was deemed ‘appropriate and sufficient’.

32. Both of the above cases arose as a result of material breaches of the Data Protection Act 1998 by the respective Defendants, and can be considered to provide binding precedents for my own situation. I believe that by way of the multiple breaches, and unlawful processing of my data to two third-parties, (ZZPS and QDR Solicitors Ltd) on three separate occasions, this amounts to significant distress and is therefore of similar nature to the Halliday case.

33. I am now considering whether to issue proceedings against you. Should you in the meantime issue proceedings against me, I will make a counterclaim against you in the above terms. I will also seek costs against you (court fees plus my time at £19 per hour).


So, whether you press ahead with that will depend on whether they are interfering with your lease and whether they had reasonable cause to get your data from the DVLA based upon where the car was parked, who owns that land and what the signs there say. And whether this is an area where your lease actually grants you any rights that override those signs.

Does your lease clearly demarcate the boundaries of the estate and is that road included?

QUOTE
I've even spoken to the landowner directly, who were very helpful, however even they haven't been able to get them to rescind their charges, so here we are.
You need to stop speaking to them on the phone, and ask instead by email, for their position on the matter and to confirm whether they support PCNs being issued to residents, and whether they have anything - e.g. in the head lease, or in their contract with the scumbag parking firm - that shows whether these roads are included in the enforcement area, or not.


Thanks for your advice SchoolRunMum. I’ve sent an email to the landlord asking them to clarify if they own the road, and if not who does, I’m just waiting on a response back for that one. I’ve got a copy of the title register and plan for the whole estate, which from what I can interpret shows that the whole area of land (including the roadway) was owned by the original house builder, but the landlord took ownership of each block of flats and their corresponding parking spaces once the development was finished. The road however is still not clear and my presumption is either that the building firm still owns this or has sold it on to a third party. Is there an easy way of finding this out?

The lease only shows my flat, my parking space and the car park itself clearly, however in the lease there is some more detail in terms of easement rights and privileges. What it says is:

“Schedule 2 - Easement Rights and Privileges

1. The right for the Leaseholder and all persons authorised by the Leaseholder (in common with all other persons entitled to the like right) at all times to use the Common Parts for all purposes incidental to the occupation and enjoyment of the Premises (but not further or otherwise)”

“Schedule 3 - Exceptions and Reservations

1. Easement rights and privileges over along and through the Premises equivalent to those set forth in Paragraphs 2, 3 and 4 of Schedule 2.”

I’m not sure how much help these are to my claim, but they seem to suggest I have a right to access around the estate for the purposes of loading/unloading, etc.

Annoyingly, the roadway is not defined within the ‘Common Parts’, so it is very ambiguous, and of course all of this is presuming the landlord owns the road, which still hasn’t been clarified.

This post has been edited by SaulGoodman: Sat, 10 Nov 2018 - 19:33
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SchoolRunMum
post Sat, 10 Nov 2018 - 20:21
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QUOTE
and through the Premises

So is the roadway defined under the Definitions, as part of''the Premises''?

There's loads written about easements and rights of way. Google it and you will find useful articles by various law firms.

Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 W.L.R. 2620 is the authority which (distinguishing the opposite decision in Batchelor v Marlow, which the Supreme Court cast doubt upon) established that a right to park was capable of being implied into a right of vehicular access if the right to park was reasonably necessary for the exercise or enjoyment of the right of access.

https://www.tanfieldchambers.co.uk/resource...-be-an-easement

HTH
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SaulGoodman
post Sat, 10 Nov 2018 - 20:49
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Having just double-checked, the roadway isn’t mentioned at all, just the ‘Accessway’ which is the car park where the private parking spaces are, which is directly adjacent to the roadway (and can only be accessed by car by driving along the roadway into the Accessway)
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SchoolRunMum
post Sat, 10 Nov 2018 - 20:58
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If that's the only access then you can reasonably conclude, IMHO, that you must all have an 'easement appurtenant' to use it to access your properties and the landowner (whoever it is) is the ''servient'' owner, and cannot extinguish those rights or cut off reasonable access.

See this:

https://www.tanfieldchambers.co.uk/resource...reated-and-used

and here is more about Moncrieff, with a picture of the access road that was the subject of the dispute:

http://www.inksters.com/background.aspx

QUOTE
''Ultimately the legal point at issue was whether or not you could have a servitude right to park as an ancillary right to a right of access. This point was undecided in Scots law which made the case one that could be taken all the way to the highest court in the land.''

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SaulGoodman
post Sat, 10 Nov 2018 - 21:32
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That’s really useful, thanks! The more I read PCM v Bull I see how similar the case is to mine, and I guess the easements parts help support that. I’ll still wait for a reply from the landlord to see if I can clarify ownership of the road, but this is really helpful.

In terms of me replying back to the PPC after their reply, how do you think I should best approach this? So far this is what I have drafted:


[i][Today’s date]

Dear [name],

I have received your reply dated 5th November 2018 to my Letter Before Claim.

Having read through your reply, I must address some points which remain unresolved.

It is unclear what your position is in relation to my claim against you. Section 6 ‘Steps before issuing a claim at court’ of the Practice Direction - Pre-Action Conduct and Protocols dictates that upon receiving a Letter Before Claim, you as the Defendant should:

“(b) include confirmation as to whether the claim is accepted and, if it is not accepted, the reasons why, together with an explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim as well as providing details of any counterclaim”

https://www.justice.gov.uk/courts/procedure...otocol/prot_jrv

Therefore, I request that you reply to this letter with a clear confirmation of your position in relation to my claim, specifically whether you accept or do not accept my claim (and your explanation as to why this is the case).

Section 6c of the Practice Direction- Pre-Action Conduct and Protocols dictates that both parties should disclose:

“key documents relevant to the issues in dispute”

https://www.justice.gov.uk/courts/procedure...otocol/prot_jrv

I have already provided you with a full copy of my lease agreement and all letters received that relate to my claim, however you have not provided me any of the documents I have requested, namely:

Any contract between you and the Landowner setting out the terms on which you manage the parking on the estate.

Any correspondence between you and the Landowner regarding the introduction and management of the permit system.

You state in your letter that the land is not owned by yourself or [my landlord], however you do not explain who the landowner is due to a cause on your contract with the landowner. You state that you will not provide a copy of the landowner agreement as this document is confidential and that you are only obligated to do so when court proceedings are in place. Section 3 of the Practice Direction- Pre-Action Conduct and Protocols ‘Objectives of pre-action conduct and protocols’, states that:

“Before commencing proceedings, the court will expect the parties to have exchanged sufficient information to—

(a) understand each other’s position;
(b) make decisions about how to proceed;
© try to settle the issues without proceedings;
(d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
(e) support the efficient management of those proceedings; and
(f) reduce the costs of resolving the dispute.”

https://www.justice.gov.uk/courts/procedure...-action_conduct

As such, my request to you to supply this information is to help resolve the issue without making court proceedings and reduce the costs involved in this claim, therefore I kindly ask again you to provide a copy of the landowner agreement as requested.

You have also not provided any reply to my request for correspondence between you and the Landowner regarding the introduction and management of the permit system, so I ask you again to provide this information.

I look forward to receiving your response within 14 days.

Yours sincerely,




[Me][i]

[/i]


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SchoolRunMum
post Sat, 10 Nov 2018 - 21:51
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QUOTE
As such, my request to you to supply this information is to help resolve the issue without making court proceedings and reduce the costs involved in this claim, therefore I kindly ask again you to provide a copy of the landowner agreement as requested with specific reference to the site boundaries/areas of enforcement as agreed with the landowner(s) specifically showing your client's defence and excuse for ticketing on the roadway where the parking firm contends they offered a contract, and pictures of the signs at that roadway.

Is it their case that the roadway is separately owned? If so, by whom?

Please disclose your client's specific, documented authority to issue parking charges to cars stopped on the roadway, and explain how they believe they are able to offer a parking licence there at a price?

No doubt you will need to revert to your client in order to supply the above information and I look forward to a more substantive reply, within 30 days.

Further, I refer you to the authority within Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 W.L.R. 2620, which established that a right to park was capable of being implied into a right of vehicular access if the right to park was reasonably necessary for the exercise or enjoyment of the right of access. Your client cannot impede a resident's right of access along a roadway leading to premises, and nor can they - as a third party and a stranger to the easements, covenants, grants and rights in the residents' leases - offer a licence to park, if it was the landowner's intention that the roadway was meant to be marked as a no-stopping zone, which it was not.


Maybe add some of the above to the sentence that started ''As such, my request to you...''

This post has been edited by SchoolRunMum: Sat, 10 Nov 2018 - 21:52
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SaulGoodman
post Sat, 10 Nov 2018 - 22:54
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QUOTE (SchoolRunMum @ Sat, 10 Nov 2018 - 21:51) *
QUOTE
As such, my request to you to supply this information is to help resolve the issue without making court proceedings and reduce the costs involved in this claim, therefore I kindly ask again you to provide a copy of the landowner agreement as requested with specific reference to the site boundaries/areas of enforcement as agreed with the landowner(s) specifically showing your client's defence and excuse for ticketing on the roadway where the parking firm contends they offered a contract, and pictures of the signs at that roadway.

Is it their case that the roadway is separately owned? If so, by whom?

Please disclose your client's specific, documented authority to issue parking charges to cars stopped on the roadway, and explain how they believe they are able to offer a parking licence there at a price?

No doubt you will need to revert to your client in order to supply the above information and I look forward to a more substantive reply, within 30 days.

Further, I refer you to the authority within Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 W.L.R. 2620, which established that a right to park was capable of being implied into a right of vehicular access if the right to park was reasonably necessary for the exercise or enjoyment of the right of access. Your client cannot impede a resident's right of access along a roadway leading to premises, and nor can they - as a third party and a stranger to the easements, covenants, grants and rights in the residents' leases - offer a licence to park, if it was the landowner's intention that the roadway was meant to be marked as a no-stopping zone, which it was not.


Maybe add some of the above to the sentence that started ''As such, my request to you...''


That’s fantastic SchoolRunMum, thank you very much! I’ll pop that all together and send a letter off on Monday. I’ll let you know what I get back, and if any new information arrives in the meantime.
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SaulGoodman
post Yesterday, 15:31
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So I got a reply back today from my local authority’s legal firm to confirm that the road is not adopted, but is subject to a Section 38 agreement and that there are outstanding works on the site required to be completed before the road can be adopted. They can provide me a copy of this agreement for a fee (£36), so my question is, will this show me who the owner of the road is, and therefore is it worth paying to have a copy as part of my claim? I’m not sure what a Section 38 agreement will really detail so don’t want to spend the money if it’s not going to be much use.
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nosferatu1001
post Yesterday, 15:33
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Almost certtainly it is a "we will adopt the road but only if you complete the following works"
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SaulGoodman
post Yesterday, 15:38
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QUOTE (nosferatu1001 @ Mon, 12 Nov 2018 - 15:33) *
Almost certtainly it is a "we will adopt the road but only if you complete the following works"


Will it detail who the owner of the road is?
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nosferatu1001
post Yesterday, 15:53
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Yes, because it has to
The land registry MUST know who the owner is.
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SaulGoodman
post Yesterday, 16:02
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Ive just called the Land Registry and they’ve said they can find out exactly who owns the road by doing a SIM application for £4, which seems like the better option. That’ll also reference the exact title deed too.
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bobthesod
post Yesterday, 19:13
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OP
As still an 'apprentice' still learning the ropes, can i ask, and more learned poster on here can clarify

1) Should a'Private Road' or similar be shown at the entrance of the road, to differentiate it from an adopted road

2) Are any of the PPC signs visible along the road? where do you pass/see the first one?

It may help if the 'boundary' they are claiming is not adequate marked.
.


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SaulGoodman
post Yesterday, 19:33
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QUOTE (bobthesod @ Mon, 12 Nov 2018 - 19:13) *
OP
As still an 'apprentice' still learning the ropes, can i ask, and more learned poster on here can clarify

1) Should a'Private Road' or similar be shown at the entrance of the road, to differentiate it from an adopted road

2) Are any of the PPC signs visible along the road? where do you pass/see the first one?

It may help if the 'boundary' they are claiming is not adequate marked.
.


To my knowledge bobthesod, it’s very difficult to know who owns a road without investigating it in detail, certainly that’s been the case for me.

In terms of signage, the first sign for the PPC seen is about 30 metres or so onto the road where it is on a lamppost in small writing.
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nosferatu1001
post Yesterday, 20:46
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Nothing requires anyone to mark their land as being private
It will help to do so, but it's not a requirement.

There are no regulations whatsoever
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SaulGoodman
post Yesterday, 21:42
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Nosferatu, in your opinion do you think it’s worth sending in the SIM to the land registry?
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SchoolRunMum
post Yesterday, 22:32
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I don't want to speak for Noferatu but for four quid it seems a no-brainer!
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