PCN - received while vehicle was being loaded for 10 minutes.

[KHarHar]

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.

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.

[b789]

@KHarHar, you’re very welcome.

You’ve done everything that needed to be done at this stage. The IAS now has the full legal argument, the photographs of the signage and, importantly, the contemporaneous WhatsApp evidence explaining exactly why the vehicle was there.

I agree with your expectations about the IAS, so I would not read too much into the outcome either way. If they reject it, that does not suddenly make PCM right, nor does it make the £100 legally due. It simply means PCM may continue pursuing the alleged debt and, ultimately, would have to prove its case if they chose to issue a court claim.

The important thing is that you now understand the actual issues: this was genuine loading/unloading of heavy furniture at a residential property; PCM’s own signage does not expressly prohibit loading; Jopson v Homeguard is directly relevant; and their attempt to manufacture a presumption from Elliott v Loake is legally absurd.

For now, just wait for the IAS decision and post it up when it arrives.

[KHarHar]

@KHarHar, you’re very welcome.

You’ve done everything that needed to be done at this stage. The IAS now has the full legal argument, the photographs of the signage and, importantly, the contemporaneous WhatsApp evidence explaining exactly why the vehicle was there.

I agree with your expectations about the IAS, so I would not read too much into the outcome either way. If they reject it, that does not suddenly make PCM right, nor does it make the £100 legally due. It simply means PCM may continue pursuing the alleged debt and, ultimately, would have to prove its case if they chose to issue a court claim.

The important thing is that you now understand the actual issues: this was genuine loading/unloading of heavy furniture at a residential property; PCM’s own signage does not expressly prohibit loading; Jopson v Homeguard is directly relevant; and their attempt to manufacture a presumption from Elliott v Loake is legally absurd.

For now, just wait for the IAS decision and post it up when it arrives.

Apologies for the deleted post - I had an issue with an edit and decided to just start over.

Thank you very much for this! PCM have responded and provided their Prima Facie case. Unsurprisingly it fails to deal with any of the points of law that we have made, and tries to assert the primacy of the parking code of practice over the actual case law of Jopson. They also assert that they have satisfied schedule 4 of PoFA however they have not said how or why. I'm sure you'll notice a hundred more things, but it seems really weak. 

They have also included a site map of the area, as well as a scan of the sign posts, the original PCN and the text of my original appeal to them. 

The text of their response is as follows:

"Site background:
Parking Control Management UK Ltd has been contracted by our client to manage the parking in this area by enforcing the
parking restrictions. This site is private land and is managed and operated by Parking Control Management. The Parking
Charge Notice (PCN) has been issued in accordance with this parking management scheme.

The contravention:
On this occasion, the vehicle was parked in an area for permit holders only.
The advertised contractual terms require drivers parked in this area to have their vehicle registered for a valid virtual
permit. This is clearly outlined by signage and the onus is on the driver to ensure compliance with the terms. I can
confirm that the vehicle in question did not have a valid virtual permit registered at the time of enforcement.
Response to the appellant’s representation:
Under Schedule 4 of the Protection of Freedoms Act 2012 (‘the Act’), the operator may seek to recover unpaid parking
charges from the registered keeper of the vehicle. The conditions of the Act have been satisfied and as, to date, the full
name and “address for service” for the driver have not been provided, the operator will be exercising their right to pursue
the appellant.

The Private Parking Sector Single Code of Practice defines “parked” as “a vehicle being stationary other than in the course
of driving” and further specifies that “a vehicle may be deemed to be parked whether or not the driver has left the vehicle
and/or turned the ignition off”. In this case, it is clear that the vehicle was parked.
The signage on site makes no concessions to allow temporary parking to those loading and unloading. The entrance
signage makes it clear that the area is applicable to permit holders only and further signage goes on to clarify that vehicles
must be registered for a valid virtual bay corresponding resident permit. As the vehicle was not registered for a virtual
permit, unfortunately one risked enforcement action in line with the conditions advertised throughout the site.
The charge arises from a contractual relationship, the terms of which are stipulated by the signs. It will be noted that we,
as the operator, are a principal (not an agent) in this contract. This site has been audited by the IPC and a copy of the
landowner’s authority has been provided to them as part of the audit process. 
However, whilst we maintain that we do,
in fact, have the authority of the landowner to operate upon this site (being the principal in the contract); the existence
of this document has no legal bearing on the contract with the motorist. See Vehicle Control Services v HMRC [2013] EWCA
Civ 186, para 22 per Lewison LJ.As this is a commercially sensitive document, and is irrelevant to the issues at hand, this
is not provided as evidence in this appeal, however, this document is available for the IAS to review at their convenience.
The fact remains that the vehicle entered the permit-controlled land at 18:03 and exited at 18:14, 11 minutes later
without being authorized to park on site for any reason. As such, a charge was issued correctly in line with the advertised
conditions of parking. It is on that basis that PCM maintain the decision to reject the appellant’s appeal."

The IAS now gives me two options: 

"1) SUBMIT YOUR RESPONSE - You can respond to the evidence by making any representations that you consider to be relevant as to the lawfulness of the charge any by uploading any extra photographs or other evidence that you may have. After you submit your response, and the operator doesn't provide any more information you will not have the ability to add to or amend your submission. If the operator provides more information or evidence you will then have another chance to respond.

- OR -

2) REFER THE CASE STRAIGHT TO ARBITRATION - If you think you do not need to add any more information or evidence, for example if you consider that the information provided is not capable of showing that you are, on the face of it, responsible for the parking charge, then you may choose this option. Neither party will have the opportunity of making more representations and the Adjudicator will decide, on the balance of probabilities, whether you are liable for the parking charge."

Do you think it is worth responding on how weak their argument is? 

Kind regards

[b789]

@KHarHar, PCM's prima facie case is every bit as weak as expected. I would not refer it straight to adjudication. Use the "SUBMIT YOUR RESPONSE" option and rebut what they have now said.

The most obvious problem is that they still have not actually answered the central legal issue.

PCM says the Code defines a parked vehicle as one which is stationary other than in the course of driving. That does not somehow give the Code supremacy over Jopson v Homeguard. The PPSCoP is an industry code. It is not legislation and it cannot rewrite the legal meaning of the contractual restriction or displace the reasoning of a Circuit Judge on appeal concerning the distinction between parking and genuine loading/unloading.

In Jopson, HHJ Harris QC expressly distinguished ordinary parking from a vehicle stopping for the period reasonably necessary to load or unload, including the example of an awkward item of furniture. That is precisely the factual issue here. PCM cannot answer that by quoting its trade association's generic definition of "parked" and declaring the matter closed.

Their statement that:

"The signage on site makes no concessions to allow temporary parking to those loading and unloading"

actually makes matters worse for them.

The signage does not say "No Loading", "No Unloading" or "No Stopping". It regulates parking by reference to permits. PCM is therefore trying to treat an omission of a loading exemption as though it were an express prohibition on loading. Those are not the same thing.

More importantly, PCM has completely ignored the provision of the very Code upon which it seeks to rely.

Under PPSCoP clause 14.1, before a parking charge can be issued the operator must have written landowner confirmation covering, among other things, the parking terms and conditions and any relevant specific permissions and exemptions, including those stopping for short periods such as delivery drivers and couriers.

And Annex G.3 goes further. It expressly states that the landowner confirms that it has considered with the operator:

"Arrangements and exemptions for loading/unloading and deliveries".

PCM has produced none of that evidence.

Instead, it merely says that the site has been audited by the IPC and that a copy of the landowner authority has previously been supplied to the IPC. That proves nothing about what the agreement actually says concerning loading/unloading at this site.

Their suggestion that the landowner authority is "irrelevant" because of Vehicle Control Services v HMRC [2013] EWCA Civ 186 is also a misuse of that authority.

Paragraph 22 of VCS v HMRC dealt with the proposition that a contracting party does not necessarily need a proprietary interest in land before it can enter into a contract. It does not establish that a parking operator need never prove the extent of the authority actually granted to it by the landowner. Indeed, that case itself examined the actual contractual arrangements between VCS and its client when deciding what VCS was authorised to do.

That is precisely the question here: what has this landowner authorised PCM to enforce against visitors engaged in loading/unloading?

PCM cannot simultaneously rely upon the PPSCoP while refusing to disclose the very landowner arrangements which clause 14.1 requires to cover the applicable terms, permissions and exemptions.

Their PoFA paragraph is equally superficial:

"The conditions of the Act have been satisfied."

That is not evidence or legal reasoning. It is simply a conclusion.

If PCM seeks keeper liability under Schedule 4, it must demonstrate compliance with the relevant statutory requirements. Merely writing "the conditions have been satisfied" does not establish them. PoFA requires, among other matters, that the Notice to Keeper specify the relevant land and the period of parking to which the notice relates.

PCM's evidence consists of ANPR entry and exit timestamps. Those prove when the vehicle crossed cameras. They do not prove that the vehicle was continuously parked for that entire period, nor do they establish what activity occurred between those timestamps.

That distinction matters particularly here because the evidence is that the vehicle was present for the specific purpose of collecting and loading heavy furniture.

PCM then says:

"The fact remains that the vehicle entered the permit-controlled land at 18:03 and exited at 18:14, 11 minutes later without being authorized [sic] to park on site for any reason."

Again, that simply assumes the very issue that is disputed. The question is whether the brief activity constituted parking at all, or genuine loading/unloading within the principle identified in Jopson.

They have not answered that question.

I would therefore submit the following concise rebuttal to the IAS:

RESPONSE TO OPERATOR'S PRIMA FACIE CASE

The Operator's response does not answer the substantive legal issues raised. It repeats conclusions, relies on undisclosed evidence and seeks to elevate an industry Code above applicable legal authority. The appellant is fully aware of the distinction between those matters and will not accept assertion as proof.

PCM relies upon the PPSCoP definition of "parked" as though that disposes of Jopson v Homeguard Services Ltd, B9GF0A9E. It does not. The PPSCoP is an industry code, not legislation, and cannot displace the reasoning of HHJ Harris QC distinguishing ordinary parking from temporary stopping reasonably necessary for genuine loading/unloading, including the loading or unloading of awkward furniture. The factual evidence remains that the vehicle was present briefly for precisely that purpose.

PCM's assertion that "the signage on site makes no concessions to allow temporary parking to those loading and unloading" actually undermines its case. The signage does not state "No Loading", "No Unloading" or "No Stopping"; it regulates parking by reference to permits. PCM is therefore attempting to convert the absence of an express loading exemption into an express prohibition on loading, which is not the same thing.

That omission is particularly significant because PPSCoP clause 14.1 requires written landowner authority addressing the applicable parking terms, permissions and exemptions, while Annex G.3 expressly identifies:

"Arrangements and exemptions for loading/unloading and deliveries."

PCM has produced no evidence of what those arrangements actually are at this site.

Instead, PCM states that the IPC has previously seen the landowner authority and that:

"this document is available for the IAS to review at their convenience."

That is not evidence available to the appellant and it is not an acceptable substitute for disclosure. That is what one would expect from a kangaroo court.

The landowner agreement goes directly to the issue in dispute: what authority PCM was actually given concerning loading/unloading, deliveries, collections and visitors to residents. Without disclosure, the appellant cannot test whether the agreement was in force on the material date, whether it covers the relevant land, what restrictions PCM was authorised to enforce, whether loading/unloading or deliveries were exempted, or whether PCM's enforcement authority was subject to any relevant limitation.

If the IAS intends to rely upon a document supplied privately by PCM but withheld from the appellant, the appellant expressly objects. An adjudicative process cannot fairly determine a disputed issue by reference to evidence which one party is prevented from seeing, testing or answering. Any genuinely commercially sensitive material could readily be redacted while leaving the operative provisions visible.

The appellant therefore puts both PCM and the IAS on clear notice: either the relevant landowner authority is disclosed so that its operative provisions can be scrutinised by both parties, or PCM has failed to prove the scope of the authority upon which it relies. The appellant will not accept an unexplained assurance that the necessary evidence exists somewhere in the background and may be examined privately by the adjudicator.

PCM's reliance upon Vehicle Control Services Ltd v HMRC [2013] EWCA Civ 186 does not assist it. Paragraph 22 concerns the proposition that a contracting party need not necessarily hold a proprietary interest in land in order to contract. It does not establish that a parking operator is relieved of proving the scope of the authority actually granted to it. Indeed, the Court of Appeal itself examined the contractual arrangements between VCS and its client when considering what VCS was authorised to do.

That is precisely the issue here: what did this landowner authorise PCM to enforce against a visitor engaged in loading/unloading? PCM cannot rely upon the PPSCoP provisions requiring relevant permissions and exemptions to be addressed while simultaneously withholding the very agreement capable of proving what those permissions and exemptions are.

PCM's treatment of PoFA Schedule 4 is equally inadequate. It states merely:

"The conditions of the Act have been satisfied."

That is a conclusion, not proof.

The driver remains unidentified. If PCM seeks keeper liability, it must establish compliance with the relevant requirements of Schedule 4. A bare assertion that those conditions have been met does not establish them. In particular, Schedule 4 requires the Notice to Keeper to specify the period of parking. PCM relies upon ANPR entry and exit timestamps. Those establish only when the vehicle passed the cameras; they do not establish a continuous period of parking or what occurred during the intervening period.

PCM then states that the vehicle entered at 18:03 and exited at 18:14:

"without being authorised to park on site for any reason."

That simply assumes the very issue in dispute.

The appellant's case is not that an unidentified driver was entitled to ordinary permit-controlled parking. The case is that the vehicle was present briefly for genuine loading of heavy furniture from a resident. The question is therefore whether that activity constituted "parking" at all, having regard to Jopson, the wording of PCM's own signage and the site-specific loading/unloading arrangements which PCM refuses to disclose. PCM has not answered that question.

PCM has therefore failed to:

• distinguish or properly address Jopson;
• identify any express contractual prohibition on loading/unloading;
• disclose the landowner provisions governing loading/unloading and deliveries;
• justify reliance upon undisclosed evidence;
• demonstrate that VCS v HMRC renders the scope of its authority irrelevant; or
• substantiate its bare assertion of Schedule 4 compliance.

The appellant understands the legal and evidential issues engaged by this appeal and will not be diverted by unsupported conclusions, selective citation of authority or evidence withheld from scrutiny.

The Operator has therefore failed to establish that the Parking Charge is lawfully payable.

[KHarHar]

@KHarHar, PCM's prima facie case is every bit as weak as expected. I would not refer it straight to adjudication. Use the "SUBMIT YOUR RESPONSE" option and rebut what they have now said.

The most obvious problem is that they still have not actually answered the central legal issue.

PCM says the Code defines a parked vehicle as one which is stationary other than in the course of driving. That does not somehow give the Code supremacy over Jopson v Homeguard. The PPSCoP is an industry code. It is not legislation and it cannot rewrite the legal meaning of the contractual restriction or displace the reasoning of a Circuit Judge on appeal concerning the distinction between parking and genuine loading/unloading.

In Jopson, HHJ Harris QC expressly distinguished ordinary parking from a vehicle stopping for the period reasonably necessary to load or unload, including the example of an awkward item of furniture. That is precisely the factual issue here. PCM cannot answer that by quoting its trade association's generic definition of "parked" and declaring the matter closed.

Their statement that:

"The signage on site makes no concessions to allow temporary parking to those loading and unloading"

actually makes matters worse for them.

The signage does not say "No Loading", "No Unloading" or "No Stopping". It regulates parking by reference to permits. PCM is therefore trying to treat an omission of a loading exemption as though it were an express prohibition on loading. Those are not the same thing.

More importantly, PCM has completely ignored the provision of the very Code upon which it seeks to rely.

Under PPSCoP clause 14.1, before a parking charge can be issued the operator must have written landowner confirmation covering, among other things, the parking terms and conditions and any relevant specific permissions and exemptions, including those stopping for short periods such as delivery drivers and couriers.

And Annex G.3 goes further. It expressly states that the landowner confirms that it has considered with the operator:

"Arrangements and exemptions for loading/unloading and deliveries".

PCM has produced none of that evidence.

Instead, it merely says that the site has been audited by the IPC and that a copy of the landowner authority has previously been supplied to the IPC. That proves nothing about what the agreement actually says concerning loading/unloading at this site.

Their suggestion that the landowner authority is "irrelevant" because of Vehicle Control Services v HMRC [2013] EWCA Civ 186 is also a misuse of that authority.

Paragraph 22 of VCS v HMRC dealt with the proposition that a contracting party does not necessarily need a proprietary interest in land before it can enter into a contract. It does not establish that a parking operator need never prove the extent of the authority actually granted to it by the landowner. Indeed, that case itself examined the actual contractual arrangements between VCS and its client when deciding what VCS was authorised to do.

That is precisely the question here: what has this landowner authorised PCM to enforce against visitors engaged in loading/unloading?

PCM cannot simultaneously rely upon the PPSCoP while refusing to disclose the very landowner arrangements which clause 14.1 requires to cover the applicable terms, permissions and exemptions.

Their PoFA paragraph is equally superficial:

"The conditions of the Act have been satisfied."

That is not evidence or legal reasoning. It is simply a conclusion.

If PCM seeks keeper liability under Schedule 4, it must demonstrate compliance with the relevant statutory requirements. Merely writing "the conditions have been satisfied" does not establish them. PoFA requires, among other matters, that the Notice to Keeper specify the relevant land and the period of parking to which the notice relates.

PCM's evidence consists of ANPR entry and exit timestamps. Those prove when the vehicle crossed cameras. They do not prove that the vehicle was continuously parked for that entire period, nor do they establish what activity occurred between those timestamps.

That distinction matters particularly here because the evidence is that the vehicle was present for the specific purpose of collecting and loading heavy furniture.

PCM then says:

"The fact remains that the vehicle entered the permit-controlled land at 18:03 and exited at 18:14, 11 minutes later without being authorized [sic] to park on site for any reason."

Again, that simply assumes the very issue that is disputed. The question is whether the brief activity constituted parking at all, or genuine loading/unloading within the principle identified in Jopson.

They have not answered that question.

I would therefore submit the following concise rebuttal to the IAS:

RESPONSE TO OPERATOR'S PRIMA FACIE CASE

The Operator's response does not answer the substantive legal issues raised. It repeats conclusions, relies on undisclosed evidence and seeks to elevate an industry Code above applicable legal authority. The appellant is fully aware of the distinction between those matters and will not accept assertion as proof.

PCM relies upon the PPSCoP definition of "parked" as though that disposes of Jopson v Homeguard Services Ltd, B9GF0A9E. It does not. The PPSCoP is an industry code, not legislation, and cannot displace the reasoning of HHJ Harris QC distinguishing ordinary parking from temporary stopping reasonably necessary for genuine loading/unloading, including the loading or unloading of awkward furniture. The factual evidence remains that the vehicle was present briefly for precisely that purpose.

PCM's assertion that "the signage on site makes no concessions to allow temporary parking to those loading and unloading" actually undermines its case. The signage does not state "No Loading", "No Unloading" or "No Stopping"; it regulates parking by reference to permits. PCM is therefore attempting to convert the absence of an express loading exemption into an express prohibition on loading, which is not the same thing.

That omission is particularly significant because PPSCoP clause 14.1 requires written landowner authority addressing the applicable parking terms, permissions and exemptions, while Annex G.3 expressly identifies:

"Arrangements and exemptions for loading/unloading and deliveries."

PCM has produced no evidence of what those arrangements actually are at this site.

Instead, PCM states that the IPC has previously seen the landowner authority and that:

"this document is available for the IAS to review at their convenience."

That is not evidence available to the appellant and it is not an acceptable substitute for disclosure. That is what one would expect from a kangaroo court.

The landowner agreement goes directly to the issue in dispute: what authority PCM was actually given concerning loading/unloading, deliveries, collections and visitors to residents. Without disclosure, the appellant cannot test whether the agreement was in force on the material date, whether it covers the relevant land, what restrictions PCM was authorised to enforce, whether loading/unloading or deliveries were exempted, or whether PCM's enforcement authority was subject to any relevant limitation.

If the IAS intends to rely upon a document supplied privately by PCM but withheld from the appellant, the appellant expressly objects. An adjudicative process cannot fairly determine a disputed issue by reference to evidence which one party is prevented from seeing, testing or answering. Any genuinely commercially sensitive material could readily be redacted while leaving the operative provisions visible.

The appellant therefore puts both PCM and the IAS on clear notice: either the relevant landowner authority is disclosed so that its operative provisions can be scrutinised by both parties, or PCM has failed to prove the scope of the authority upon which it relies. The appellant will not accept an unexplained assurance that the necessary evidence exists somewhere in the background and may be examined privately by the adjudicator.

PCM's reliance upon Vehicle Control Services Ltd v HMRC [2013] EWCA Civ 186 does not assist it. Paragraph 22 concerns the proposition that a contracting party need not necessarily hold a proprietary interest in land in order to contract. It does not establish that a parking operator is relieved of proving the scope of the authority actually granted to it. Indeed, the Court of Appeal itself examined the contractual arrangements between VCS and its client when considering what VCS was authorised to do.

That is precisely the issue here: what did this landowner authorise PCM to enforce against a visitor engaged in loading/unloading? PCM cannot rely upon the PPSCoP provisions requiring relevant permissions and exemptions to be addressed while simultaneously withholding the very agreement capable of proving what those permissions and exemptions are.

PCM's treatment of PoFA Schedule 4 is equally inadequate. It states merely:

"The conditions of the Act have been satisfied."

That is a conclusion, not proof.

The driver remains unidentified. If PCM seeks keeper liability, it must establish compliance with the relevant requirements of Schedule 4. A bare assertion that those conditions have been met does not establish them. In particular, Schedule 4 requires the Notice to Keeper to specify the period of parking. PCM relies upon ANPR entry and exit timestamps. Those establish only when the vehicle passed the cameras; they do not establish a continuous period of parking or what occurred during the intervening period.

PCM then states that the vehicle entered at 18:03 and exited at 18:14:

"without being authorised to park on site for any reason."

That simply assumes the very issue in dispute.

The appellant's case is not that an unidentified driver was entitled to ordinary permit-controlled parking. The case is that the vehicle was present briefly for genuine loading of heavy furniture from a resident. The question is therefore whether that activity constituted "parking" at all, having regard to Jopson, the wording of PCM's own signage and the site-specific loading/unloading arrangements which PCM refuses to disclose. PCM has not answered that question.

PCM has therefore failed to:

• distinguish or properly address Jopson;
• identify any express contractual prohibition on loading/unloading;
• disclose the landowner provisions governing loading/unloading and deliveries;
• justify reliance upon undisclosed evidence;
• demonstrate that VCS v HMRC renders the scope of its authority irrelevant; or
• substantiate its bare assertion of Schedule 4 compliance.

The appellant understands the legal and evidential issues engaged by this appeal and will not be diverted by unsupported conclusions, selective citation of authority or evidence withheld from scrutiny.

The Operator has therefore failed to establish that the Parking Charge is lawfully payable.

Thank you, I have submitted this now - interested to see if they will respond or whether they will request adjudication. There are some points within that response (as well as the complete ignoring of Jopson) that I cannot picture any reasonable rebuttal to (although I've learned that this won't stop them).

Thanks again for such a well-fleshed out response. I'll let you know as soon as it progresses.

[KHarHar]

PCM have decided not to issue a final response, and have decided to refer it straight to adjudication.

[b789]

That's normal for them and all other IPC operators. Just wait for the pretend solicitor that is adjudicating to come back with their decision.