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#Post#: 15939--------------------------------------------------
Re: PCN - Parking in my own space - Not showing permit
DIR By: H C Andersen
Date: February 20, 2024, 9:01 am
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IMO, the NTK is substantially compliant.
[member=26]b789[/member] what makes you so certain that it is
not compliant?
And OP, how did you obtain a permit i.e. how have 'the
regulations set out by the landlord which relate to use of the
retained parts.' been brought to your attention?
#Post#: 15941--------------------------------------------------
Re: PCN - Parking in my own space - Not showing permit
DIR By: 10shinhan
Date: February 20, 2024, 9:04 am
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--- Quote from: H C Andersen link ---
>
> IMO, the NTK is substantially compliant.
>
> [member=26]b789[/member] what makes you so certain that it is
not compliant?
>
> And OP, how did you obtain a permit i.e. how have 'the
regulations set out by the landlord which relate to use of the
retained parts.' been brought to your attention?
>
--- End Quote ---
The permits were sent by post and the management company told us
they were bringing in a PPC.
#Post#: 15943--------------------------------------------------
Re: PCN - Parking in my own space - Not showing permit
DIR By: DWMB2
Date: February 20, 2024, 9:07 am
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--- Quote from: H C Andersen link ---
>
> IMO, the NTK is substantially compliant.
>
--- End Quote ---
Agreed, at least insofar as any failures that might be
identified are small enough that I wouldn't be advising an OP
that the parking company "will" lose if they go to court... I'm
not sure any of us can operate with that degree of certainty.
#Post#: 15948--------------------------------------------------
Re: PCN - Parking in my own space - Not showing permit
DIR By: H C Andersen
Date: February 20, 2024, 9:53 am
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OP, pl don't make us do all the hard work!!
You posted: The permits were sent by post and the management
company told us they were bringing in a PPC.
Prior to which you posted the management company's response
(which we haven't seen but which you transposed) which stated:
..you have the right to park in the space but must comply with
the regulations set out by the landlord which relate to use of
the retained parts.
I asked what regulations and what notice you had received
regarding these. You replied as above.
You are an owner. Will you pl see this in those wider terms and
not the narrow confines of parking.
Are you prepared to accept such a response from them which fails
to consider the matter of your rights under the lease, their
responsibilities to YOU in the context of the landlord's
responsibilities to YOU and you to them. What next I wonder?
Who are the management company e.g. are they incorporated, if so
what's their registered number, are owners represented, how are
decisions taken, do you pay a charge for their services
and/those for which they're responsible to you on the landlord's
behalf etc. etc?
#Post#: 15967--------------------------------------------------
Re: PCN - Parking in my own space - Not showing permit
DIR By: b789
Date: February 20, 2024, 1:42 pm
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“Substantially compliant” is not good enough. No one is saying
that it is certain that it is a winning point in a defence
should it reach a court. As always, one defends on as many
points as possible.
In order to pursue a keeper under PoFA, an operator must comply
with the strict requirements for keeper liability set out in
PoFA. Partial or even substantial compliance is insufficient.
The NtK must comply with all the requirements of PoFA Paragraph
9 in order to be effective.
PoFA paragraph 9(2)(f) says that the NtK must contain a warning
that makes express reference to 'all the applicable conditions
under [PoFA]' being met. The NtK does not make any reference to
the applicable conditions under PoFA. This failure alone could
render the charge unenforceable against the keeper.
PoFA sets out the conditions that must be followed if they want
to hold the keeper liable. We see too many instances where these
unregulated companies try to rely on PoFA without “strictly
complying” on the necessary wording. “Substantially compliant”
without even mentioning that they are relying on the Act should
not be acceptable. We have seen companies argue that they are
not relying on PoFA after issuing a PoFA compliant NtK and
others that try to rely on it without being “strictly
compliant”. They can’t have it both ways.
#Post#: 15974--------------------------------------------------
Re: PCN - Parking in my own space - Not showing permit
DIR By: DWMB2
Date: February 20, 2024, 2:54 pm
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--- Quote from: b789 link ---
>
> No one is saying that it is certain that it is a winning point
in a defence should it reach a court.
>
--- End Quote ---
Good, although comments like the below could give the distinct
impression that you were saying it is certain...
--- Quote from: b789 link ---
>
> The NtK is not PoFA compliant.[...] However, as long as they
do not have the drivers details, if they try a court claim,
without having the drivers details, they will lose.
>
--- End Quote ---
I don't disagree that "substantially compliant" shouldn't, but
for many judges, it probably would be, so whilst it could be
included in a defence if applicable, we should be clear that
it's unlikely to be a strong point.
In the meantime, we should focus on the issues around ownership
and the management company etc.
#Post#: 15989--------------------------------------------------
Re: PCN - Parking in my own space - Not showing permit
DIR By: H C Andersen
Date: February 21, 2024, 2:24 am
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IMO, the black and white view being expressed is well wide of
the mark and unhelpful to an OP unless there are authorities in
support.
None has yet been posted.
PoFA paragraph 9(2)(f) says that the NtK must contain a warning
that makes express reference to 'all the applicable conditions
under [PoFA]' being met. The NtK does not make any reference to
the applicable conditions under PoFA. This failure alone could
render the charge unenforceable against the keeper.
The argument is circular because in order for a court to enforce
a claim it must be satisfied that the conditions of para. 4 have
been met, it is therefore(IMO) tautological to insist that the
NTK itself states exactly the words of the legal test which the
court itself would apply!
But I don't think there will be a meeting of minds on this
point.
#Post#: 15992--------------------------------------------------
Re: PCN - Parking in my own space - Not showing permit
DIR By: b789
Date: February 21, 2024, 3:30 am
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The operator has chosen not to mention the fact that it is
relying on PoFA. It has not said that it can rely on PoFA
“subject to all the applicable conditions being met”.
For example, without knowing what is written in the “location”
box on the NtK, it could be a location that is ambiguous. In
which case, if the fact is raised that the NtK is not PoFA
compliant because it does not define the “relevant land”, they
could then turn around and just claim that it was not relying on
PoFA.
BTW, OP, what does it say in the “location” box on the NtK?
Could you enter the contents of that box into Google maps and it
comes up with more than one possible location?
Whilst this is an IPC operator, I have little to no faith that
the IAS would view the above scenario favourably, unlike a
recent POPLA appeal that won on exactly that argument. However,
should this ever get to court, it could be a winning argument.
What is written as the “location”?
#Post#: 15994--------------------------------------------------
Re: PCN - Parking in my own space - Not showing permit
DIR By: DWMB2
Date: February 21, 2024, 3:54 am
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--- Quote ---
> But I don't think there will be a meeting of minds on this
point.
--- End Quote ---
With that in mind let's all please focus instead on what might
be far more meritorious defence points.
#Post#: 15995--------------------------------------------------
Re: PCN - Parking in my own space - Not showing permit
DIR By: H C Andersen
Date: February 21, 2024, 4:15 am
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Agreed.
OP, will you pl get away from the narrow issue of PoFA and
answer my questions in #13 e.g. what 'landlord regulations', how
conveyed etc. etc?
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