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

[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.