CEL ANPR PCN Claimform - overstay - Portwood Court, Garfield street, Stockport, SK1 2ED.

[benny46]

CEL have sent me their evidence bundle by email probably because they are closing for Christmas,

 

it clearly shows in pictures that they altered the signs on the 15th December 2017 and I parked there on 23rd January 2018 only 39 days after the terms of parking were altered,

 

it also shows that they did not put any signs showing the terms have been altered

they only put stickers over the 3 hours making it 1 hour, as I have stated in number 4 of my defence

 

they should give a grace period and make it clear on the signage that the terms have changed, will this help me in my defence and should I put this information in my Witness Statement?

[dx100uk]

scan it all up to one multipage PDF

we don't need to see each exhibits cover sheet.

[benny46]

Sorry struggling with this bit, I just posted the first 58 pages and it says I can't upload any more so I have had to remove the attachment, there are 188 pages in all as they have included evidence from previous cases like the Beavis one, I'll try and sort it out.

 

I have attached the relevant pages, I have omitted the POPLA appeal which was refused, also the BPA code of practice and the numerous cases they added, you can clearly see the ladder on the signs where they have put a sticker over the 3 hours to make it 1 hour on the 15th December.

 

Redacted version of the Court Bundle attached.

157720267047568.pdf

[dx100uk]

so much the same as the other CEL thread below yours that got a CEL WS today.

 

there is no proof the contract to manage parking has been paid for in 2018

 

there is no proof the managing agent are acting for the land owner

 

nothing with regard to the council allowing the varying of the originally granted planning permission from 3 to 1hrs.

 

etc etc

[benny46]

OK, this is the defence I am going to file to CEL and the court by tomorrow, is there anything I should add or take away, hopefully someone will read this and tell if not never mind as its Christmas.

 

I was the registered keeper of the vehicle in question on the date concerned.

On 30-01-2018 I received a parking charge notice from the claimant alleging my vehicle overstayed at Portwood Court car park in Stockport on 23-01-2018, I do not know where Portwood Court is and my vehicle was parked on Garfield Court at the alleged time.

Firstly at the time of the claim I could find no evidence of any planning permission on the Stockport Council planning portal for any signs on the car park at Portwood Court or Garfield street and this is where my vehicle was parked, it is my understanding that these signs in order to be legal require planning permission, there was also no planning permission for any pole mounted ANPR cameras and permission is also required for these.

Within the Town & Country Planning (Control of Advertisements) (England) Regulations 2007 (as ammended) it states "If a proposed advertisement does not fall into one of the Classes in Schedule 1 or Schedule 3 to the Regulations, consent must be applied for and obtained from the local planning authority (referred to as express consent in the Regulations). Express consent is also required to display an advertisement that does not comply with the specific conditions and limitations on the class that the advertisement would otherwise have consent under."

The signs within the car park do not fall into the above catagories and are therefore illegal as they should have planning permission and I cannot be bound by an illegal contract.

Secondly please see attached picture number 1, this is the sign at the entrance to the car park, this clearly states that the car park is free and has no contractual agreement on it therefore it is just an invitation for motorists to park there.

Thirdly please see attached picture number 2, this is a screenshot from Google earth, it clearly shows that the signage, used to show 3 hours free parking, not the one hour that Civil Enforcement are claiming, anyone who has previously read the terms and conditions displayed within the car park, which I had done, would be under the illusion that you can park for 3 hours as you had previously read the terms and conditions, to alter the sign from 3 hours to 1 hour would also need to be stipulated in the planning permission but there is no planning permission for the signs.

 

Fourth, the British Parking Association Code of Practice clearly states in the Operational Requirements for England and Wales, Section 18.11 " 18.11 Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes."

Where the BPA state that “ Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage” all CEL have done is change one digit on the whole of the sign, they have changed a 3 to a 1 and the rest of the sign is exactly the same.

As you can see from the entrance picture number 1 which was taken when I received the original Parking Charge Notice there is nothing intimating that the terms and conditions have changed from 3 hours to 1 hour which is required by the British Parking Association Code of Practise, the signs were changed on the 15^th December 2017 and no grace period was offerred which the BPA also state should be offerred when the conditions for parking has been changed.

 

Fifth, please see attached picture number 3 showing the original PCN, this picture only shows a registration number, it does not show any image of where the location is and it is impossible from the pictures to tell where it is or even if the vehicle entered the car park, it could be a picture from any car park operated by CEL, either way it is impossible to see where the pictures are taken as there is no background to support that they are at the same location.

The BPA Code of Practise Section 20.5 states “When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered “ the pictures supplied are not clear and legible as to where the location was.

 

Sixth, The signs at this location are extremely high and very blurred, picture number 4 shows how high the sign actually is and picture number 5 shows the actual height as 9 foot 9 inches, due to the lettering being weathered by the sun and very small lettering it is hard to see what the sign says unless you use a ladder, see picture number 6 which shows the lettering as 7mm high taken from a ladder at extreme close up. The BPA code of practise 18.3 states that the signs should be legible, these signs are not legible due to the height, the size of the lettering and the weathering of the letters, you can clearly see in picture number 7 how weathered the old letterring describing the conditions have become, compared to the new stuck on lettering changing the hours which is legible.

Seventh, Pictures 8 and 9 show the ANPR cameras are pole mounted, for these type of cameras you need planning permission and there was no planning permission showing on the Stockport Council Planning permission portal for these pole mounted cameras.

_______________________________________________________________________________________________________________________________________

Should I mention the fact they have not show they have proof to manage or the landowners permission or leave that bit for my day in court?

 

[benny46]

I missed this bit.

 

Eighth, Paragraph 21.1 of the British Parking Association Code of Practice (CoP) advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The CoP requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for.

The signs at Garfield Street car park do not comply with these requirements because the car park signage failed to notify the driver what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.

It is not clear that the cameras are not for security but are there in order to calculate 'total stay'.

This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: Requirement for Transparency:

[dx100uk]

you must address :

 

there is no proof the contract to manage parking has been paid for in 2018

 

there is no proof the managing agent are acting for the land owner

 

nothing with regard to the council allowing the varying of the originally granted planning permission which would never have been just 1hrs.

 

use numbers not first, second, fifthly. for your points.

[benny46]

Thank you dx100uk, I have added those points to my statement.

[ericsbrother]

your point "thirdly". does you no favours. either rely on the 3 hours offer and say that the new signs werent there at the time or forget what henry II  said back in medieval times as it doesnt count now

 

where you mention illegality due to planning law quote Lord denning's reasoning on this and other examples.

 

Where CEL dont have permission you make it clear that they cannot perfoprm to their contract so no right to claim. This gets round the existence of the signs and an expectation that they can do things because they did before

 

lastly why the hell did you give them an email address when all the advice on any parking post says dont do it and block their email addy. If you handt read that when you joined you should have heeded the advice and at least blocked it as soon as you read anything.

 

You could have won this by today if they couldnt email you

[benny46]

My case is tomorrow, I will post up the result, thank you for all the help.

[honeybee13]

Fingers crossed for you, Benny. Please let us know how it goes, whatever the result.

 

I'll be thinking of you.

 

HB

[dx100uk]

no little chats before you go in if they turn up.

smile, walk away!

 

 

[FTMDave]

Go for it Benny - give CEL the kicking they deserve! 

[brassnecked]

Goob luck, just remember don't panic, present your case and trash theirs.

[ericsbrother]

also ask about the credentials of their rep, if it isnt an actual solicitor then they have no right of audience without someone from CEL present.

 

If the judge allows them to speak dont challenge this ( judges powes allow them to decide who speaks in their court) but do ask the questions as to whether the person is a qualified solicitor on the SRA roll before it all starts and ask that the Ws is then discounted as there is no-one to answer to it.

 

If no-one turns up ask for a full costs recovery order under CPR 27.14.2(g) to include £95 LiP research costs.

Quote the CPR and have something in writing to give re loss of income, travel etc as well as this money

[benny46]

OK

I lost my case,

the judge threw out all the points I raised,

he stated that having planning permission does not affect this case,

not having the landowners permission does not affect it

and none of the other points are valid.

 

I even quoted the following as part of my evidence.

 

"The Claimant is not entitled to rely on an illegal or immoral act in order to profit from it, pursuant to the doctrine ex dolo malo non oritur actio.

 

In this case, the claiments signs are illegal and/or immoral:

the installation/display of the Claimant’s signage on the Land/Site, and the Claimant’s disregard of Regulations which apply to it and of the BPA Code of Practise.

 

The first is a criminal act and should not be sanctioned by the court.

Minor infringements might be forgivable but the wholescale, multiple breaches by the Claimant, and its ignorance of the laws which apply to it, should not be forgiven, particularly when it is obliged to familiarise itself with and follow the law by paragraph A2.4 of the Code of Practise (including consumer law, contract law, and trespass).

 

The rationale for the doctrine is set out in the early case of Holman v Johnson (1775) 1 Cowp 341 where Lord Mansfield[/URL] said:

The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so.

 

The principle of public policy is this; ex dolo malo non oritur actio"no action arises from deceit".

No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own standing or otherwise, the cause of action appears to arise ex turpi causa ["from an immoral cause"], or the transgression of a positive law of this country, there the court says he has no right to be assisted.

 

The principle was reaffirmed in RTA (Business Consultants) Ltd v Bracewell [2015] EWHC 630 (QB) (12 March 2015) where, at paragraph 34 of the judgment the above passage was cited.

 

The Court’s attention is also drawn to Andre Agassi v S Robinson (HM Inspector of Taxes) [2005] EWCA Civ 1507. Whilst not wholly aligned to the issues in this case it has been produced because of the principle it extols that no one should profit from their unlawful conduct. The Court’s attention is drawn to paragraph 20 of the judgment

 

“It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful”.

 

Paragraph 28 continues –“cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform."

 

Also,                                                                                                                                                                                                                                                      " On pictures 4 and 9 it shows the whole of the sign where the reference to the £100 charge is of the same lettering and colour as the rest of the sign, Lord Denning ruled Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 that " All I say is that it is so wide and so destructive of rights that the court should not hold any man bound by it unless it is drawn to his attention in the most explicit way … In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it – or something equally startling."

 

Also the case of Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433 indicates that the Thornton approach to unusual terms applies to contract terms in general, not just exclusion clauses."

 

But there was one good point,

the Judge did not allow them to claim any additional costs that they were trying to claim because the signage states that "Additional costs/recovery charges will be incurred if payment not received within 28 days" but the signage did not say I was responsible for those costs, it just stated they will be incurred,

 

I have to pay the original £100, £25 court costs and £75 Solicitor fee but nothing else.

 

All in all I don't think CEL would have made much out of this case as their Solicitor was at court for 10am and we did not get into the courtroom until 11-30 and did not get out until until 12-40 so I think out of what I have to pay a lot of it will be swallowed up in their own costs.

[brassnecked]

Looks like Judge Lottery unfortunately sorry you lost.

[dx100uk]

urm.. wonder who he plays golf with...….

 

dx

 

[FTMDave]

Sorry to hear the bad result Benny.

[nssimpson]

I wonder why CEL dropped my case but not yours? Was there something Benny did that messed up his case? :(

 

Benny, was £200 less than if you'd settled CEL's final money demand?

[benny46]

nssimpson, their final offer of settlement was £60 which I refused, the money doesn't matter to me it was the principle, when I said to the Judge so your saying they can change their signs on a daily basis he said yes if they want to, that was the main thing I wanted clarifying.

[brassnecked]

Definitely judge lottery with that comment Benny.