ES Parking/Gladstone claimforn - PCN Spinningfields Manchester

[Beamengine]

Beam Enginer, I found a Manchester Council Planning and Highways committee May 2014 document which refers to Gartside St as "the adopted

highway on Gartside Street", which suggests its run by the council, not the landowner.

I think that would be a reference to the part of the Street that remained adopted. In any case it is a partnership so ownership is not really an issue but whether it is a public highway is.

 

Apologies,

I have just found all of your pictures in post 17,

my browser only displayed the first but opening it in a viewer showed them all.

I run non standard software so this is the price I pay for being secure.

 

I think that the section in the Gazette notice is the raised part and this would make sense if it is intended to be a pedestrian area.

 

However, the warning signs are place on convenient council standards and bear no relation to the actual area claimed to be private land

 

The taxi in your first picture is probably not stopped on the raised area so would not be on the private land.

 

In the absence of any road markings the extend is impossible to determine so that should be part of your defence as well.

[ginger1981]

Specifically for fast track

Read here all is explained

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-December-2014**

 

By the same reasoning as CPR31 being only for non small claims though this hasn't yet been allocated a track, but this section does not rule out use in any track.

 

I can't find anywhere in CPR 18 where it says only fast track. CPR18 1.1 "

 

Before making an application to the court for an order under Part 18, the party seeking clarification or information (the first party) should first serve on the party from whom it is sought (the second party) a written request for that clarification or information (a Request) stating a date by which the response to the Request should be served.

 

The date must allow the second party a reasonable time to respond."

[dx100uk]

yea that's what I was eluding too

just that we've not seen it recommended here by the legal ones shall we say.

 

there was a time where 18 was all the rage but that was years ago and it did really help sadly.

 

eric etc on these PPC threads tends to use 31:14

 

sadly though the bottom line is its only a request

they don't 'have' to respond

but it puts them at a disadvantage in the judges eye. if they don't.

 

bottom line is

as far as we've seen so far

no-one has 'lost' one of the new BW cases yet

as long as the claim IS defended at AOS stage and beyond.

 

anyhow

time is ticking for the OP

speculating what to do or not isn't helping

get a 3114 running.

 

it cant hurt

 

as their POC is so [purposefully] sparse and vague

it should prove advantageous.

 

there are a few 31:14 parking ones in other like threads here too

 

dx

[Beamengine]

DX,

I was wary of going the 31:14 route unless there was an argument that it should be allocated to the fast track.

 

 

Now that we have a much clearer understanding of the issues,

especially the complex question of whether or not the area constitutes an adopted highway,

I would argue that there are a number of complex issues at least one of which involves a point of law.

As such the small claims track would not be appropriate.

 

The maxim "once a highway always a highway" would appear to have been circumvented if the whole of Gartside Street is no longer a public highway.

 

 

Resolving that issue alone will be a point of law if rights can be extinguished because they are no longer necessary only to be reinstated a short time later.

 

Will ES Parking pay the hefty £545 hearing fee for a fast track claim for a £100 charge?

 

The defence needs only to be a skeleton argument.

How about:

1. Gartside Street is an adopted highway and private contracts governing its use are ultra vires.

2. The area claimed to be private land is not clearly delineated and the notices could apply to the footways.

3. The signs cannot be read by a driver unless they stop to read the signs and park thereby breaching the terms and conditions.

4. The vehicle was not parked in Gartside Street at any time, stopping does not constitute parking.

 

Anything else?

[dx100uk]

BTW beam

I wonder what your interest in this case is

have you too had a ticket from them?

 

 

stick with the tried and tested method

as you say keep it simple

let the court decide how, and what happens

[ginger1981]

Well I decided to go with CPR18, we'll see what I hear back, more than anything it will help with the claim if they refuse to provide documents under either 18 or 31. I'm still waiting to hear back from Manchester Council and hope to hear from Allied London next week too.

I think the defence will be along those lines Beamengine.

[Beamengine]

Your defence only needs to be the issues that the claimant must prove as the burden of proof rests with them. They must convince the judge on all four lines of your defence to succeed.

I doubt that they will take the matter any further.

In any case even if they do decide to go for allocatin to a track there will be more time to gather the counter arguments so don't panic.

[Beamengine]

The POC only says

"The claimant claims the sum of £152.30 for Parking Charges and indemnity costs if applicable including £2.30 interest..."

 

The use of minimal details in the claim is significant as it makes no mention that the charges was for stopping rather than parking.

The Keeper At Date Of Event (KADOE) contract allows DVLA to provide personal data under the DPA and conventiently defines Parking Charge as:

 

“Parking Charge” means:

(a) a sum in the nature of a fee or charge, arising under the terms of a contract (including a contract arising only when the vehicle was parked on the land) between:

the driver and the owner or occupier of the land; or

a person authorised, under or by virtue of arrangements made by the owner or occupier of the land, to enter into a contract with the driver requiring the payment of parking charges in respect of the parking of the vehicle on the land; and

(b) a sum in the nature of damages arising as a result of trespass or other tort committed by parking the vehicle on land, provided that adequate notice of the sum was given to the driver of the vehicle (when the vehicle was parked on the land).

Adequate notice means the display of one or more notices that:

specify the sum as the charge for unauthorised parking and are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land, and

comply with any applicable requirements prescribed in regulations under paragraph 12 to Schedule 4 to the Protection of Freedoms Act 2012.

ES Parking are not on the list provided by DVLA for the number of KADOE enquiries up to October 2015 so they may be a new company and on probation.

 

 

Their letters are careful to avoid state that the charge is for stopping rather than parking as did the POC.

 

 

I very much doubt that this is anything other than a speculatice claim and that filing a defence will mean that it will not go to a hearing.

 

 

If they could be shown to have issued the charge without reasonable cause this would be a good basis for a claim for distress under the DPA as well as putting in jeopardy their ability to obtain keeper data from DVLA.

[Beamengine]

ES Parking are very careful about their web presence as their index page does not contain any obvious links.

 

 

The domain name's registrant's details are hidden by a privacy company which is unusual for a puble limited company especially one that claims to be the UK number one in parking management.

 

Using the seach facility take you inside the site with a numebr of options although on my browser most of them are black on a black background!

 

This page https://www.espel.uk/about-us/ indicated that they act for MCR Manchester who just happen to be offering office accommodation in Spinningfields.

 

 

Perhaps that are the landowners.

[ericsbrother]

the use of the term stopping by the parking co is one that can be argued against as a contractual matter because how are you supposed to consider and then accept or reject their offer of a contract of you dont stop to read it?

 

 

This point was made in the Beavis decision and that was translated into a requirement of the membership of the BPA in their CoP

 

 

so ES will ahve to show that whatever code or system they have is better than that (no chance).

 

It also loses VCS, UKPC and others their claims as the term then becomes a matter of prohibition and not a contract or breach of contract.

[ericsbrother]

If beam engine is correct about the road being a public highway then dont start a new war but just use it in your defence, - it will be cheaper and simpler unless you are on benefits and have no assets.

 

However, if you then win you cant claim full costs as you wont have any!

[Beamengine]

My failure to find an entry in the London Gazette for an application to extinguish the highway for part of the road does not mean that the road is still a public highway.

 

The first line of the defence I posted will ensure that ES Parking will have to demonstrate that they do have the authority they claim.

 

Stopping up part of the highway would mean that there would no longer be a right of way for vehicles but the application may not include the footway so the right of way would remain.

 

It would be a complex argument if the footway remained public but the roadway was not and vehicular access was subsequently restored.

 

There is a distinct possibility that ES Parking have misinterpreted the legal status and will decline to defend their position in court.

 

I have other evidence that may be difficult for them to counter

but we must wait the outcome of the FOI request for clarification of the position.

 

That does not prevent a defence including that basis as the burden of proof would be on the cliamant to demonstrate that they did have the legal right to make the claim..

 

As I suspected ES Parking are a new company and have only started issuing PCNs this year.

 

According to http://www.bmpa.eu/companydata/E_S_Parking_Enforcement.html you should ignore them until it gets to a court claim - that is most unusual advice.

 

Apparently they have issued 6573 notices but none of them have got as far as a court hearing i.e. beyond the initial cliam.

[Oddfellow]

As I suspected ES Parking are a new company and have only started issuing PCNs this year. According to http://www.bmpa.eu/companydata/E_S_Parking_Enforcement.html you should ignore them until it gets to a court claim - that is most unusual adcive.

Apparently they have issued 6573 notices but none of them have got as far as a court hearing i.e. beyond the initial cliam.

 

 

aka "Chancers"

[Beamengine]

Chancers is far too polite.

 

It would appear that their is a familial relations with the now defunct ANPR Ltd run by Trev who had the distinction of being thrown out of the BPA

 

. ES Parking appear to have stuck up their notices over a large section of Spinningfields including one at the entrance to the new Magistrates Court buildings.

 

I can see no evidence of notices indicating the change of status to private land apart from the fly posters even when turning off a bus route

 

. They have already received a lot of publicity in the local media for issuing a charge to a van driver who was waiting to gain access to the RBS building.

 

Should they be reported to the Council for fly posting and see what their response is?

[Oddfellow]

Doesn't house the County Court as well, does it? Now that WOULD be ironic!

[Beamengine]

Judge for yourself, it's the Manchester Civil Justice Centre

[Oddfellow]

Sure does ... but not the Magistrates.

[ericsbrother]

there is also case law that defeats their claim,

Dawood v Camden

 

so it doesnt matter if it isnt a public highway,

just that it is treated as one or appears to be one

. the street furniture will do that.

 

If the road has been dug up in recent memory and an application put in to do so that also means that it is treated as a public highway.

 

Rights of way themselves are an odd thing as they dont have to be written down

, just an easement created and therefore usage of the road for the last 8 years will create that.

Again, this trumps a silly sign claiming a contractual relationship.

[Beamengine]

Sure does ... but not the Magistrates.

That is now on the other side of Gartside Street in the new Crown Court building. The Civil Justice Centre was built on the site of the old Magistrates Court so I am just our of date as usual

[Beamengine]

there is also case law that defeats their claim, Dawood v Camden so it doesnt matter if it isnt a public highway, just that it is treated as one or appears to be one, the street furniture will do that.

I am not sure that Dawood is relevant as that was whether parking restrictions could be applied to private land which was also a road.

The question there was whether it was lawful to park a motorcycle on a strip of land outside his house.

This was considered by the Parking Adjudicator who upheld the PCNs.

Dr Dawood sought a judicial review which was refused and this refusal was upheld by the Court of Appeal.

The court could find that it was both a road and private land where the owner could restrict its use.

Their claim would then fail on the basis that it appears to be a public highway as it connects and A road to a B road with no clear signs to the contrary.

As you point out the street furniture would make it appear to be one, especially the worn yellow lines and the poor condition of the surface!

[ericsbrother]

the Dawood decision also says can be accessed from the public highway so theoretically any person's driveway that doesnt have a gate on it is covered.

 

I know it says maintained at the public expense and that wasnt the case

but the law has been set so it would have to apply equally.

 

However, that is just another minor point to make in case the judge hadnt read any notes on parking

and from what has happened recently they all seem pretty clued up.

 

 

Not surprised with the number of claims clogging the system.

[Beamengine]

Ericsbrother,

I am far from convinced that the Dawood case is of general applicability as it is based on Section 15(1) of the Greater London Council (General Powers) Act 1974.

 

 

The PATAS review stated that the Act originally made it an offence for any vehicle to be parked with one or more of its wheels resting on any footway, land between carriageways, or on any grass verge, garden or space.

 

 

This has been amended over time and was further amended subsequently but, at the material time, the position was that a contravention occurred if a vehicle was parked with one or more wheels on any part of an urban road other than a carriageway.

 

PATAS is only concerned with appeals on the enforcement of PCNs in London and the General Powers are only applicable to the area covered by the former GLC.

 

 

In fact there was no High Court decision on the merits of the case as the application for a judicial review was not granted and this decision was upheld by the Court of Appeal.

 

I have yet to find the High Court decision (anyone know where I can find it?) but it appears that the High Court judge took the view that, whether it was a road or not, it was certainly a garden or space adjacent to and accessibly from the footway.

 

 

That would be sufficient reason not to grant the review which was then upheld on Appeal.

In that context it would then be correct to describe the area as part of an urban road other than a carriageway.

Extrapolating that to a more general view would result in some bizarre scenarios.

 

 

Supermarkets have large car parks where the entrances are rarely conspicuously marked as private land but invite customers to park under an implied contract.

 

 

As such they would correctly be classed as part of an urban road other than a carriageway and this is supported by the change in the RTA to require third party insurance on such roads.

 

 

If my local council implemented regulations similar to those of the GLC then they would be able to issue PCNs to all customers which would clearly be ridiculous.

 

A distinction must surely be made between roads to which the public have access and public highways maintained at public expense

 

 

. In an era of public spending cuts this begs the question as to whether a road which is repaired by residents remains a public highway which is the question that needs to be answered in the case of the Spinningfield development.

[ericsbrother]

the problem with the decision of Dawood is that the finding was on matters of law and not matters of fact and any case that gets beyond the county court can set a precedent so not going to the high court is irrelevant.

 

 

When you consider things like PATAS it is all about accepted codes of practice (acops) so ES would have to show that they followed some CoP to win a claim where there is a dispute over interpretation of previous decisions and I cannot see them even attempting that but as I said earlier,

 

 

this is a small detail that merely adds to the balance of argument against the claim having any real merit.

 

 

Also, one has to consider where the road traffic act may be applied and that includes private land in many places for various offences so in this case the use of double yellow lines would have an accepted meaning and that does not preclude stopping to allow a passenger to alight.

 

 

Again ES will be unable to argue that there isnt a ACOP for interpreting road markings even though they arent part of any law on private land it has been commented upon by judges in previous cases where the motorist successfully defended a claim.

 

In short, it all adds up to a weight of evidence that there was no breach of contract and the OP can separate out all of the reasons as to why and offer them individually, he only has to be right about one of them and that may be as simple as no planning permission for the signage or lack of authority.

 

However I disagree with your statemtn about whether someone can issue parking tickets to all and sundry in a car park, that is precisely what the judgement in Dawood allowed, even if it was a law of unintended consequences.

 

 

There is another court decision going back to about 1990 that concerned the use of towpaths on the Thames (I think it was the Thames but a navigable river anyway) .

 

 

A judge decided that use of a towpath to secure a mooring next to someones land was unlawful because the towpath was purely the surface and the soil underneath it was somehow not part of that path nor supporting it.

 

 

Now riparian rights for a river bank extend to the centre of the river bed and give no rights to the river bed itself so the law of the land in relatively recent events ignores the laws of physics.

 

 

A road in Regents Park also has a strange lease on it that will allow Christian Candy to dig it up and create a garden even though he has no rights to restrict its use as a council adopted public highway (adopted when it became part of the Crown Estate)

 

 

so at Spinningfields the OP should be looking at the original ownership and any covenants, leases or restrictions applied to it before it beacme part of a great City. The council will be able to assist in this, as will very old maps.

 

Again, this is all useful but should not the main point of the argument.

[Beamengine]

Ginger must be getting very confused by our exchange so can I make it clear that it is not really part of the issues raised in her case in terms of the defence.

 

 

I think we agree that ES Parking's approach is ultra vires on the basis that the street remained a public highway unless they can prove otherwise.

 

 

The claim would in any case likely to fail on the other three issue in my list so I very much doubt that they will take it any further given their track record.

 

I thought that the Royal Parks and other Crown Land were definitely not public highway allowing free access to members of the public.

 

 

I would strongly advice anyone, for example, forcing entry into a park when the gates are closed or even more, attempting to drive into a military base on the basis that it is Crown land.

 

The towpath is an adjunct to the river on which craft have a right of way similar to the highway although some river authorities may have regulations that govern use such as the requirement of a licence or speed limits.

 

 

Just as with the public highway the adjacent landowner owns the land to the centre of the road or river and the towpath is a right of way to allow horses to draw boats on the river.

 

 

Canals and their towpaths are slightly different as they were initially privately owned as were the turnpikes which eventually reverted to public rights of way largely though usage.

 

I must disagree with the statement that High Court judgements create a legal precedent.

They do create a precedent that other judges may follow but judges may disagree with that decision which is where the Court of Appeal comes in to decide on a point of law.

 

 

In any case I am not satisfied that the judge in Dawood v Camden did make a decision that would count as a judgement on the facts, he simply decided not to allow a judicial review.

 

 

In the absence of a transcript of the judgement I will not speculate on what it contains.

Edited August 16, 2016 by honeybee13
Paras.

[dx100uk]

wish you two would double line space on paragraph endings

when ever you post on cag....

 

 

dx