PCN - stopped/waiting in restricted area Options

[AlCapwn]

A family member has received this PCN in the post. To give some background, parking enforcement with ANPR is a recent addition by social housing org at my parent's address (we have an open complaint with them) and prevents parking in areas which it previously did not. The driver left the car for a period while going to deal with some paperwork at the request of my parents.

I can't find my previous thread however there was a mention of forbidding contract in signage. Would this be an appeal point here? Letter seems to include all requirements from PoFA 2012 Section 4







Addition of ANPR is a complete unnecessary stress for us :< To top it off, social housing's own staff are allegedly exempt from the rules

This post has been edited by AlCapwn: Sat, 20 Nov 2021 - 21:29

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[DWMB2]

Yes, the signage can be described as forbidding, and therefore it is not capable of creating a contract. No contract = no money owed. The parking company won't accept this of course so it's an argument you'd need to try in court, if they took it there. I note in your previous thread, there was discussion of your parents' lease, which affords them the right to park, in designated spaces, was the driver parked in a designated space in this case?

For reference, your previous thread, about the general introduction of restrictions, is here: Thoughts on signage - no stopping at any time

Much of what was discussed there is still relevant, including seeking legal action against them over a breach of the equality act:

they are not making any exemptions for disabled residents

Point them in the direction of Section 20 of the Equality Act 2010: https://www.legislation.gov.uk/ukpga/2010/15/section/20 - ask them why they believe they are not required to comply with it. Particularly this part:

(3)The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage

What might make this case slightly different is that for a stay of 35 minutes, it would be hard to argue that the driver was simply 'dropping off', which was the main topic of discussion in the original thread. That said, I think the EA argument still has some legs.

[AlCapwn]

This was not a designated space, it's an open space at the rear of the building which provides easy access to the rear entrance.

I had a look at their appeals portal and they took over 100 photos which show my dad being taken up by family member A, A returning to the car and then family member B going into the building to help with paperwork. Unfortunately I agree, the EA part would not apply here.

We raised a complaint against social housing co which is still in progress. We felt this was a better option as they are obliged to respond and my parents are not inclined to engage in legal action at their age.

Iis their NtK compliant with POFA? I had a look at scheduled 4 and it seems to me it is compliant.

This post has been edited by AlCapwn: Sat, 20 Nov 2021 - 22:28

[ostell]

But there is nothing on the signs that could create a contract

[AlCapwn]

Yes, I agree.

The reason I ask about POFA compliance is that is usually low hanging fruit and pointing them to legislation may make them reluctant to pursue further.

[The Rookie]

With an IPC member, nope, that’s would be wrong, they will quite happily pursue to court on the basis the keeper was driving.

[AlCapwn]

Ok, so do you think forbidding terms is the best defence here? Or is there any mistake in their paperwork which would help?

[The Rookie]

The only 'point' in 'appealing'* is
1. To act reasonably should it get to court, by explaining up front why nothing is owed
2. To make it clear you are informed and up for a fight and that then makes a court claim less likely, we don't know why they take certain cases to court or not, but anecdotally a strong 'appeal' seems to help your chances (though the confetti of chasing and 'debt collector' letters will follow as night follows day).

So use EVERYTHING, forbidding signage is not the strongest, Jopson v Homeguard is IMO. PoFA, forbidding signage, standing

* It's not an appeal, it's a letter contesting the charge and detailing why nothing is owed.

[nosferatu1001]

You still misunderstand.

There is not one defence. You never defend Ona single point. Pofa, no contract, poor signage (assuming it's not that visible OR that it's too high to see, or it was dark and the signs aren't lit) and their lack of landholder authority are three common themes.

[AlCapwn]

Thank you both, I'm researching the topics you mentioned and will put something together. I may pop back here with more questions

[AlCapwn]

Based on research, here is what I've come up with so far. I feel it's a bit weak so would appreciate advice on wording. I am also struggling with point 5 - having googled tons of cases, there is a surprising lack of examples for responding about landholder authority.

To whom it may concern,
I write to you as keeper of vehicle XXXXX.
I deny your claim I am liable for any charge on the following terms:
1) “Forbidding” signage: The signage does not offer an invitation to park on certain terms and terms are therefore “forbidding”. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et al B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016] and Horizon Parking v Mr J C5GF17X2 [2016]. In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

2) Failure to adhere to legal requirements: The Notice to Keeper does not adhere to the requirement set forth in the Protection of Freedoms Act 2012 Section 4. Therefore there cannot be any keeper liability. I am not obliged to identify the driver and will not be doing so.

3) Unclear signage: The signage used is unclear and not consistent with IPC Code of Practice Schedule 1: “The size of the text on the sign must be appropriate for the location of the sign and should be clearly readable by a Motorist having regard to the likely position of the Motorist in relation to the sign.”

4) Unreasonable behaviour: Jopson v Homeguard established unreasonable behaviour by operators will not be tolerated. The vehicle was used to assist a disabled tenant with limited mobility enter the building who then requested further assistance with paperwork.

5) Lack of landholder authority: TBC

[DWMB2]

There's a good example of challenging landowner authority HERE. This example is written for a POPLA appeal rather than a letter directly to the parking company, so you'll need to adapt it, and ensure it's addressed directly to the parking Co rather than 3rd person, but it should give you an idea of how to word it.

Paragraph 16 HERE also includes an example of challenging landholder authority in a defence (just in case this case goes that far!).

It's worth expanding your points a little more in my opinion, it needn't be War & Peace, but will help demonstrate to the parking company that you've done your research and won't be a soft target. For example, a short explanation of how the conclusion reached in Jopson vs Homeguard supports your case. Also, if that is your strongest point, lead with it.

[nosferatu1001]

Jopson didn't cover assisting with paperwork

[The Rookie]

It didn't have to, it covered reasonable use of parking/stopping space (marked or otherwise) as part of the intended (general living) usage of the building.

[carshaltondon]

Question for the experts. The OP says that over 100 photos were taken. Doesn't that imply they were taken by an employee rather than an ANPR and therefore that employee/parking attendant/whatever had a duty to warn the OP and help mitigate a loss ?

[nosferatu1001]

Duty? Not really.

[The Rookie]

Well from Ibbotson, yes, but that would require the photographer to see the DRIVER when they left the car (and be in a position to warn them as well). If they didn't then they couldn't.

Of course it's not impossible a court may decide that Ibbotson only applies to a 'loss' claim and not a contractual charge.

This post has been edited by The Rookie: Tue, 23 Nov 2021 - 12:28

[AlCapwn]

Here is an updated version following feedback received. I am unsure if I should leave in point 3 in as their NtK seems compliant and this may backfire if it goes to court.

To whom it may concern,
I write to you as keeper of vehicle XXXXX.
I deny your claim I am liable for any charge on the following terms:
1) Unreasonable behaviour: The vehicle was used to assist a disabled tenant with limited mobility enter the building who then requested further assistance within the property. Issuing charges for such ordinary activities would make life untenable. Jopson v Homeguard confirmed that where parking enforcement makes life untenable for residents, any resulting charges are null and void.

2) “Forbidding” signage: The signage does not offer an invitation to park on certain terms and terms are therefore “forbidding”. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et al B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016] and Horizon Parking v Mr J C5GF17X2 [2016]. In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

3) Failure to adhere to legal requirements: The Notice to Keeper does not adhere to the requirement set forth in the Protection of Freedoms Act 2012 Section 4. Therefore there cannot be any keeper liability. I am not obliged to identify the driver and will not be doing so.

4) Unclear signage: The signage used is unclear and not consistent with IPC Code of Practice Schedule 1: “The size of the text on the sign must be appropriate for the location of the sign and should be clearly readable by a Motorist having regard to the likely position of the Motorist in relation to the sign.” As the signage was inadequate, the driver cannot reasonably be held to any terms supposedly displayed around the site.

5) Obligations under the Equality Act 2010: As mentioned in point 1, the vehicle was being used for a disabled tenant. Parking rules do not override your obligations under the Equality Act. I quote from the Act - Section 20: “The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”

Furthermore, the IPC Code of Conduct Section 10 obliges you to do the same.

Should you refuse to cancel this charge thus failing to make reasonable accommodations for disabled people in creating and monitoring “restricted areas”, you will be in breach of your legal and professional obligations.

6) Lack of landholder authority: As [social housing co] are the owners of the site, you do not, as an operator, have proprietary interest in the land. It is not clear you are operating with their authority in pursuing this charge. It cannot be assumed, just because you are contracted to put signs up and issue Parking Charge Notices, that you are also authorised, on the material date, to make contracts with all or any category of visiting drivers and/or to enforce the charge in your own name (disputes regarding land use generally being a matter for a landowner only).

7) Inconsistent application of parking rules: Given the proliferation of [social housing co] branded vans and vans of their contractors parking on “restricted areas”, it is readily apparent parking is being enforced on a selective basis. Enforcement of this nature discriminates against ordinary residents, family members and visitors. I refer you again to point 1 and 5, and further to IPC Code of Conduct Section 14.3.

Should you pursue this further, thereby enforcing rules in a discriminatory, selective and biased manner, you will be in breach of your legal and professional obligations.

Following this submission, I do not expect to hear from you again save to confirm the charge is cancelled and my personal data has been removed to the extent you are legally obliged to do upon receiving such a request.
Note that all references to IPC Code of Conduct refer to version 8

This post has been edited by AlCapwn: Wed, 24 Nov 2021 - 23:12

[nosferatu1001]

It won't backfire, and if it's been said that it isn't compliant here, then you need to understand why.

[The Rookie]

minor point, para 2
Use either 'Signage IS forbidding' or 'signs ARE forbidding', but not 'signage are forbidding' as signage is singular and are in this context is for plurals.