Went to Court today: Blue badge holder vs. Parking co, Judge adjourned case - Help needed writing Defence |
Went to Court today: Blue badge holder vs. Parking co, Judge adjourned case - Help needed writing Defence |
Mon, 4 Jun 2018 - 12:39
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#1
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Member Group: Members Posts: 66 Joined: 14 Oct 2016 From: london Member No.: 87,760 |
Hi All
I attended Court today as a McKenzie friend for family friend vs parking co. Just want to provide a summary of events as I think its helpful for others. To cut a long story short, family friend received a PCN from parking co last year whilst collecting daughter from daughters property. The driver is disabled and parked outside door to property displaying her blue badge in window as no disabled parking pays on site. Pictures from PCN show disabled badge on display. Parking co got keeper details from DVLA, all the letters followed addressed to Keeper (not the driver at time), parking co filed Claim at Court. Family friend did not file defence etc (they are elderly and found it overwhelming so kept it quiet etc) but asked Judge in the DQ to set case in the aside due to driver being disabled and only being there to collect daughter. The claim proceeded to Court. I only found out about this Court date yesterday(!) as the Keeper didn't really understand the paperwork/process. I offered to be McKenzie friend, looked over the paperwork etc and went to Court this morning. We provided lease doc which does not state the parking co are instructed to patrol the site, said driver is disabled, and no disabled parking on site. Parking co seemed to think that they are instructed and showed a one page 'contract' between themselves and managing agent (not landowner). Judge queried chain of contracts. Judge asked why land (and 'contract') not providing for disabled drivers. Parking co said it didn't need to provide disabled parking as it was private land. She disagreed. PCN photos also show other vehicles in background parked in similar location as the driver did, and Judge asked parking co if they were ticketed. Parking co said 'no' as they are excluded. Judge queried that adjustments clearly made on private land for maintenance vehicles, but not disabled. Judge authorised defendant to file formal defence asap stating breach of Equality Act. This post has been edited by tld2004: Wed, 6 Jun 2018 - 11:08 |
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Mon, 4 Jun 2018 - 12:39
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Mon, 4 Jun 2018 - 12:53
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#2
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Member Group: Members Posts: 41,510 Joined: 25 Aug 2011 From: Planet Earth Member No.: 49,223 |
Parking co said it didn't need to provide disabled parking as it was private land. -------------------- RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request Private Parking - remember, they just want your money and will say almost anything to get it. |
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Mon, 4 Jun 2018 - 13:15
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#3
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Member Group: Members Posts: 28,687 Joined: 27 Nov 2007 Member No.: 15,642 |
On residential land potentially not - assuming that was the case here
Theyre not a service provider. So a comical statement made badly I would suggest So I assume the claim was adjourned to allow for a full defence to be entered? |
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Mon, 4 Jun 2018 - 13:23
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#4
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Member Group: Members Posts: 66 Joined: 14 Oct 2016 From: london Member No.: 87,760 |
What do you mean "On residential land potentially not - assuming that was the case here"?
Yes it was residential. Yes guess so. She didn't say those words, just asked Defendant to file formal defence with Courts and Claimant within 14 days so it can be looked at again. |
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Mon, 4 Jun 2018 - 14:11
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#5
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Member Group: Members Posts: 4,167 Joined: 6 Oct 2012 Member No.: 57,558 |
As it was residential, what is much more applicable is what the lease says and in particular any mention of communal areas ref the Jobson case.
http://parking-prankster.blogspot.com/2016...al-parking.html Communal Areas There may be communal spaces (eg visitor parking) or access roads where parking permission is not granted by the lease or covered by a permit scheme. Communal areas are not necessarily a free-for-all, governed only by the operator signage. This was central to the Jopson case: an easement over the access roads implies a right to stop and load/unload. |
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Mon, 4 Jun 2018 - 15:21
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#6
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Member Group: Members Posts: 901 Joined: 1 Apr 2017 Member No.: 91,235 |
My first thought on your thread was that the judge has simply got this wrong: generally, car parks provided for residents are not commercial car parks and are, therefore, not subject to the requirements of the Equality Acts.
On thinking about it again, however, given that this car park has a parking contractor purportedly offering parking (presumably for £100 a day, less if paid early, but more if paid late), that changes the car park from one intended for a specific group of people and no one else into one providing parking (albeit expensive parking) to everyone. So, an argument about "reasonable adjustments" may be a good argument. Do not, however, build a defence on that point alone. Your friend's daughter's lease may be provide additional comfort. So, get hold of the lease. If you can, get it scanned as a searchable pdf document - you need something better than the free version of Adobe for this. Then conduct a search for "park". Copy and paste every bit of the lease mentioning "park" into a new document. Then go through it again to look for anything that makes provision for changes to the lease to be made or for rules and regulations to be added by the landlord and/or the management company. Copy and paste those bits to the new document. Do the same again but, this time, looking for anything about "rights of third parties". Copy and paste again. Search for "rent", "charge" and "permit". Copy and paste anything of relevance. Do not just select extracts which suit your case, copy and paste everything of relevance. The reason for this is that, if the parking operator gets a copy of the lease, you need to figure out how to defend yourself from extracts that they throw at you. On each search, go though the lease from beginning to end. Post what you find. Often, parking contracts are agreed between the parking company and managing agents without the latter bothering to seek authorisation from the owner or occupier of the land. So, I would suggest that you get your friend's daughter to contact the freeholder to enquire whether or not it has authorised the managing agents to sign the contract on its behalf. It may that the managing agents work on behalf of a management company (and not the freeholder). If this is the case, the management company may have no right or obligation under the lease to manage parking. |
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Mon, 4 Jun 2018 - 16:58
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#7
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Member Group: Members Posts: 66 Joined: 14 Oct 2016 From: london Member No.: 87,760 |
Thanks Eljayjay.
Do we need to have the original lease, the one when the initial lease was made (January 1987)? The property was bought by defendant and daughter c.2003 and only docs we have here in the conveyancing pack appear to be variations or adjustments made before and after if that makes sense. For example, the land the flats are on is huge. Part of the land was sold to someone in year 2000 and then sold on again in 2005 resulting in a petrol station (purchaser/sub-purchaser) and cricket club being built there so the two docs I have here from Land Registry talk about who is responsible for what, building a wall etc. I found a few things in these docs re "parking", 3rd parties, transfer etc, but these are only 5 page documents: TITLE ABSOLUTE: Restriction: Except under an order of the Registrar no disposition by the proprietor of the land by way of sale, assignment, transfer or lease is to be registered without the consent of the registered proprietor of the reversionary title. Happy to request copies of the original lease from 1987 and go through that searching for keywords, but not certain we'll get it back in time before 14 days is up... |
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Mon, 4 Jun 2018 - 17:08
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#8
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Member Group: Members Posts: 28,687 Joined: 27 Nov 2007 Member No.: 15,642 |
get A copy from the land registry. Today. Pretty sure it's almost immediate.
You want then lease in full. Unless the judge has directed that you can ONLY use ea2010 you are ok to use this and this is absolutely key. The defence does not need actual evidence at this point , unless the judge ordered so? It's simply a list of legal arguments. No evidence. That would be later. |
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Mon, 4 Jun 2018 - 17:27
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#9
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Member Group: Members Posts: 66 Joined: 14 Oct 2016 From: london Member No.: 87,760 |
I done it. I obtained it from Land Reg. Cost £3. It provided just one doc. I done a search on keywords, and can confirm:
TITLE ABSOLUTE: Restriction: Except under an order of the Registrar no disposition by the proprietor of the land by way of sale, assignment, transfer or lease is to be registered without the consent of the registered proprietor of the reversionary title. This post has been edited by tld2004: Mon, 4 Jun 2018 - 17:28 |
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Mon, 4 Jun 2018 - 18:31
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#10
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Member Group: Members Posts: 41,510 Joined: 25 Aug 2011 From: Planet Earth Member No.: 49,223 |
So, an argument about "reasonable adjustments" may be a good argument. I would agree that the allocated parking doesn't specifically have to provide disabled bays. However, any reasonable adjustments goes beyond that - specifically being able to temporarily park for access as in the instant case. (Moreso if there are no bays) Worth a read of Jopson here. Go on, tell us which parking company this is... -------------------- RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request Private Parking - remember, they just want your money and will say almost anything to get it. |
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Mon, 4 Jun 2018 - 20:29
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#11
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Member Group: Members Posts: 66 Joined: 14 Oct 2016 From: london Member No.: 87,760 |
London Parking Solutions
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Mon, 4 Jun 2018 - 21:24
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#12
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Member Group: Members Posts: 901 Joined: 1 Apr 2017 Member No.: 91,235 |
I think you have obtained the Title as opposed to the lease itself. Although I may not be up-to-date, there are two reasons for this: the cost of £3 is, I believe, too low for a copy lease; and you must, I believe, complete a form OC2.
Was it a fairly short document? Generally, I would expect a lease to be about 20 to 40 pages long. |
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Mon, 4 Jun 2018 - 22:23
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#13
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Member Group: Members Posts: 118 Joined: 18 Mar 2017 Member No.: 90,938 |
I think you have obtained the Title as opposed to the lease itself. Although I may not be up-to-date, there are two reasons for this: the cost of £3 is, I believe, too low for a copy lease; and you must, I believe, complete a form OC2. Was it a fairly short document? Generally, I would expect a lease to be about 20 to 40 pages long. I agree, this isn't what you need OP. As above, you can apply using OC2 though IIRC This post has been edited by publicenemyno1: Mon, 4 Jun 2018 - 22:38 |
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Mon, 4 Jun 2018 - 23:10
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#14
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Member Group: Members Posts: 6,963 Joined: 19 Dec 2006 From: Near Calais Member No.: 9,683 |
It doesn't seem to define what an accessway is. Is there a map or plan of said accessways? What if the leasholder's car breaks down on said accessway?
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Tue, 5 Jun 2018 - 07:06
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#15
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Member Group: Members Posts: 28,687 Joined: 27 Nov 2007 Member No.: 15,642 |
Frustration would apply in that case.
Left standing is not the same as broken down |
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Tue, 5 Jun 2018 - 08:57
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#16
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Member Group: Members Posts: 66 Joined: 14 Oct 2016 From: london Member No.: 87,760 |
Thanks to all - I've prepared the OC2 form and this will be posted today to obtain full copy of the lease.
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Tue, 5 Jun 2018 - 09:10
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#17
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Member Group: Members Posts: 66 Joined: 14 Oct 2016 From: london Member No.: 87,760 |
I've drafted a defence so far. Can you please take a look and let me know your thoughts.
Whilst I think the lease/chain of contracts contain merit in this case, the Judge was most keen to press the Claimant re: their handling of the Equality Act and 'Failure to make reasonable adjustments' so happy for all advice in this respect: Preliminary |
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Tue, 5 Jun 2018 - 10:25
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#18
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Member Group: Members Posts: 28,687 Joined: 27 Nov 2007 Member No.: 15,642 |
11. The vehicle was stopped on the access way for the purpose of loading/unloading only,
I wouldnt say stopped for loading / unloading - in TMA2004 terms, this was assisted boarding / alighting, as it refers to persons and not goods. |
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Wed, 6 Jun 2018 - 11:04
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#19
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Member Group: Members Posts: 66 Joined: 14 Oct 2016 From: london Member No.: 87,760 |
Thanks, I've edited. Any other suggestions?
Just discovered - the daughter of the family friend is now due in Court soon for similar 'offence' - parked in same location a few weeks previous in order to unload the vehicle due to being disabled. This will be the 3rd time LPS are trying to take the same family to Court, even though they have been told in the past they are disabled. Preliminary |
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Wed, 6 Jun 2018 - 11:34
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#20
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Member Group: Members Posts: 28,687 Joined: 27 Nov 2007 Member No.: 15,642 |
Personally I still wouldnt put the lease ans an alternative. the lease is absolute on this whereas the EA requires "reaosnable" adjustments.
I would suggest in future a counterclaim and /or a LBA to the MA who brought these gits on site, telling them to cease and desist their trespass, harassment and breach of DPA, that they are withdrawing any implied right to access they think they have. |
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