Yesterday, 09:16 PM
(Yesterday, 05:52 PM)b789 Wrote: Good... here is a draft IAS appeal you can use. You will not be able to copy and paste it into their webform because they are devious enough to block that, simply to make it as frustrating as possible to actually make a valid appeal. However, you will be able to upload the appeal as a PDF attachment, which you should do and simply note in the webform that the appeal is attached.
Remember that you must NOT select any option that identifies the driver. You are appealing solely as the Keeper. If necessary, select "other" if there is no clear option.
Quote:I appeal as the registered keeper.
The driver has not been identified. I am under no legal obligation to identify the driver to a private parking company and I will not be doing so.
The Parking Charge is denied. PCM is put to strict proof of every element necessary to establish liability, including the existence and scope of any contractual term allegedly breached, its authority from the landowner, the treatment of loading/unloading at this residential site, and compliance with Schedule 4 of the Protection of Freedoms Act 2012 (PoFA) if it seeks to recover the charge from the keeper.
1. The vehicle was engaged in genuine loading activity, not ordinary parking
The vehicle attended the residential premises for the specific purpose of collecting heavy furniture from a resident.
The resident had expressly informed the driver beforehand that the car park could be used to "load and stuff". That contemporaneous communication is evidence both of the purpose of the visit and of the resident's understanding that the area could be used for loading.
The vehicle remained on site only for the short period necessary to attend the resident's property, collect the furniture, load it into the vehicle and leave.
PCM has attempted to characterise that activity as ordinary permit-controlled parking. That is not the factual position and it fails properly to engage with the established distinction between parking and loading/unloading.
2. Jopson v Homeguard is directly relevant
The persuasive County Court appeal authority of Jopson v Homeguard Services Ltd, Oxford County Court, case B9GF0A9E, 29 June 2016, HHJ Harris QC is directly relevant.
At paragraph 19, HHJ Harris QC distinguished between ordinary parking and a temporary stop necessary for loading or unloading, expressly referring to the unloading of heavy or awkward items. At paragraph 20, the Judge explained that the concept of parking involves leaving a vehicle for longer than is reasonably required for getting in or out or for loading/unloading. At paragraph 21, the Judge expressly recognised that a vehicle stopped while an awkward item of furniture was being unloaded was not thereby "parked".
The factual analogy here is obvious. The vehicle was present for the brief and specific purpose of collecting and loading heavy furniture from a resident.
PCM's rejection does not grapple with Jopson at all. Instead it quotes the generic definition of "parked" from the Private Parking Sector Single Code of Practice and asserts that a stationary vehicle can be regarded as parked.
That entirely misses the point.
The issue is not whether the vehicle became stationary. It plainly had to become stationary in order for furniture to be loaded into it. The issue is whether the temporary stopping necessary for genuine loading constituted the contractual parking activity prohibited by PCM's signage.
Jopson demonstrates why those concepts are not interchangeable.
3. PCM's own signage does not prohibit loading or unloading
The principal contractual sign states:
"Vehicles must be registered for a valid virtual bay corresponding resident permit and be parked wholly within the confines of the allocated numbered bay at all times."
It then states:
"Breach of any term or condition will result in the driver being liable for a PARKING CHARGE of £100."
The sign does not state:
- "No loading";
- "No unloading";
- "No stopping";
- that deliveries or collections are prohibited;
- that visitors attending residents may not stop temporarily for loading; or
- that a resident cannot permit a visitor to access the premises for the purpose of loading or unloading.
PCM drafted the contractual wording. It chose to regulate parking.
It cannot retrospectively convert a permit-parking restriction into an absolute prohibition on every temporary stop, collection, delivery or loading operation when its sign contains no such term.
4. The PPSCoP specifically requires landowner arrangements to address loading/unloading and deliveries
This point is particularly important because the current Private Parking Sector Single Code of Practice, version 1.1, specifically addresses the operator's relationship with the landowner.
Clause 14.1(e) requires written confirmation from the landowner before a parking charge can be issued and requires that confirmation to cover, among other matters:
"the parking terms and conditions that are to be applied by the parking operator, including as appropriate ... specific permissions and exemptions, e.g. for staff, residents or those stopping for short periods such as taxi and minicab drivers, delivery drivers and couriers".
That is already directly relevant to this case because the vehicle was present for a short residential collection/loading activity.
The point is reinforced further by Annex G], the Code's sample landowner/operator notice. Paragraph G.3 – Appointment of the operator expressly provides that the landowner confirms that it has considered with the operator:
"Arrangements and exemptions for loading/unloading and deliveries".
This is not an incidental point. The joint BPA/IPC Code expressly contemplates that loading/unloading and delivery arrangements must be considered as part of the site management scheme.
PCM is therefore put to strict proof of:
1. the contemporaneous written landowner authority for this site;
2. the provisions dealing with loading and unloading;
3. the provisions dealing with deliveries and collections;
4. the treatment of visitors attending residents for those purposes;
5. any exemptions or permissions applicable to short-duration loading activity; and
6. PCM's authority, if any, to impose a £100 contractual charge upon a vehicle engaged in genuine loading activity.
A generic statement that PCM is "authorised to operate" is insufficient. The relevant question is what the landowner actually authorised PCM to enforce in relation to loading/unloading at this residential site.
The Code itself says that the landowner/operator arrangements should address precisely this issue.
5. PCM's own rejection does not establish a parking contravention
PCM states:
"You claim to be 'stopped' opposed to 'parked'. This is not accepted."
That is not reasoning. It is merely assertion.
PCM then relies upon the Code definition that a vehicle may be "deemed to be parked" while stationary.
But a trade-association definition cannot be read in isolation from:
- the actual contractual wording on PCM's signs;
- the factual purpose for which the vehicle stopped;
- the loading/unloading distinction recognised in Jopson; and
- the Code's own express requirement that landowner/operator arrangements consider loading/unloading and deliveries.
PCM cannot simply label the vehicle "parked" and thereby avoid addressing those matters.
6. ANPR entry and exit times do not establish the alleged parking period or the nature of the activity
PCM relies upon ANPR timestamps showing entry and exit.
Those images establish only that the vehicle passed the cameras at particular times.
They do not establish:
- when the vehicle first became stationary;
- where it became stationary;
- how long it was stationary;
- whether it was stationary continuously;
- how much time was spent manoeuvring;
- how much time was spent entering or leaving the site; or
- what activity occurred while the vehicle was present.
Most importantly, ANPR does not show whether the vehicle was being used for loading/unloading.
The evidence supplied by the appellant gives the explanation for the short visit: the vehicle attended for the collection of heavy furniture from a resident and left once that activity was completed.
PCM's ANPR evidence does not contradict that evidence.
7. PCM's reliance upon Elliott v Loake is legally misconceived
PCM's rejection states:
"It can be assumed until proved otherwise, that the keeper of the vehicle is the driver."
It then states:
"the case of Eliot v Loake [sic] makes it clear that in the absence of sufficient evidence to the contrary the keeper is assumed to be the driver."
That proposition is wrong.
There is no general legal presumption that the registered keeper of a vehicle was the driver on a particular occasion.
The driver has not been identified.
The registered keeper is under no legal obligation to identify the driver to PCM.
PCM cannot reverse the evidential position and require the keeper to prove who was driving, prove that somebody else was driving, or otherwise disprove an allegation which PCM itself is unable to substantiate.
8. Elliott v Loake does not create a keeper-equals-driver presumption
Elliott v Loake [1983] Crim LR 36 was a criminal road-traffic prosecution.
It was not a private parking contractual claim and it did not establish any rule that a registered keeper is presumed to have been the driver unless the keeper proves otherwise.
The conclusion in that case depended upon actual evidence linking the defendant to the vehicle and contradicting the account he had given.
PCM has no equivalent evidence here.
Its proposition amounts to this:
"We do not know who was driving, therefore we shall assume it was the keeper unless the keeper proves otherwise."
That is not a principle established by Elliott v Loake and it is not the law governing private parking claims.
9. Schedule 4 PoFA exists precisely because the driver may be unidentified
PCM's own rejection acknowledges that the driver has not been named.
That is precisely why Schedule 4 PoFA contains a separate statutory mechanism by which, in defined circumstances and subject to strict statutory conditions, a parking creditor may seek recovery from a vehicle's keeper even though the driver has not been identified.
If the law already presumed that the registered keeper was the driver unless proved otherwise, the statutory keeper-liability mechanism would serve no purpose.
PCM therefore has two legitimate routes:
- establish liability against an identified driver; or
- establish a statutory entitlement to pursue the keeper under Schedule 4 PoFA.
What it cannot do is invent a third route based upon a fictitious presumption that an unidentified driver must have been the registered keeper.
10. PCM's own signage attributes contractual liability to "the driver"
PCM's sign expressly states:
"Breach of any term or condition will result in the driver being liable for a PARKING CHARGE of £100."
That is PCM's own formulation of the alleged contractual liability.
The driver has not been identified.
The sign itself therefore does not establish contractual liability against the registered keeper.
Any liability against the keeper must arise, if at all, through Schedule 4 PoFA and only if PCM establishes compliance with every applicable statutory requirement.
Its misuse of Elliott v Loake cannot fill any evidential or statutory gap.
11. PCM has failed to establish that the activity fell within the restriction it seeks to enforce
PCM's case appears to reduce to the proposition that:
- the vehicle entered permit-controlled land;
- it remained there briefly;
- it did not have a virtual permit;
- therefore £100 is payable.
That analysis ignores the actual contractual issue.
The appellant's evidence is that the vehicle was present for a short residential loading operation involving heavy furniture.
PCM's signs regulate parking. They do not expressly prohibit loading or unloading.
Jopson distinguishes temporary loading from ordinary parking.
The PPSCoP itself requires landowner/operator arrangements to consider "arrangements and exemptions for loading/unloading and deliveries", and clause 14.1(e) expressly requires written landowner authority to address appropriate permissions and exemptions for persons stopping for short periods, including delivery drivers and couriers.
PCM has therefore not established merely by producing ANPR timestamps and permit signage that this loading activity constituted the alleged contractual breach.
12. Conclusion
The Parking Charge should be cancelled.
The evidence establishes a short visit for the genuine purpose of collecting and loading heavy furniture from a resident.
PCM has failed properly to address:
1. the distinction between parking and loading recognised in Jopson v Homeguard;
2. the absence of any express prohibition on loading/unloading in its signage;
3. the resident's contemporaneous evidence concerning use of the car park for loading;
4. the limitations of ANPR evidence;
5. the requirements of PPSCoP clause 14.1 regarding site-specific permissions and exemptions;
6. the express requirement in Annex G.3 that landowner/operator arrangements consider "arrangements and exemptions for loading/unloading and deliveries";
7. the fact that the driver has not been identified;
8. the absence of any legal obligation upon the keeper to identify the driver; and
9. its legally misconceived attempt to use Elliott v Loake to manufacture a presumption that the keeper was the driver.
If PCM contests this appeal, the appellant requests that it produce the full contemporaneous landowner authority relevant to the date of the alleged event, including the site-specific provisions concerning loading, unloading, deliveries, collections, resident visitors and short-duration stopping, together with the evidence upon which it contends that the brief activity in this case constituted chargeable parking rather than genuine loading.
Thank you so so much for such a thorough and well-written defence, I have done as you have instructed, and attached it in as a PDF alongside pictures of the signage and the WhatsApp Message, with a short note informing the adjudicator that the appeal is attached.
I will be sure to get back to you with the result - however reading up on the IAS I am not expecting much. With that being said, having looked at what you have provided me with, I feel a lot more confident about my position and a lot more outraged that these guys are allowed to operate.
Many thanks.
