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  • FIRST POST
    • kaych
    • By kaych 29th Sep 17, 9:36 PM
    • 334Posts
    • 189Thanks
    kaych
    Parking ticket in own allocated parking space
    • #1
    • 29th Sep 17, 9:36 PM
    Parking ticket in own allocated parking space 29th Sep 17 at 9:36 PM
    Good evening all,

    Just wondered if anyone has encountered this issue. We own our flat and a car park space in the basement (leasehold). Our management company (employed by our resident association) has brought in a private company to manage the parking within the development.

    Basically I was issued a parking ticket while my car was parked in my own allocated space. The reason for the ticket was 'permit required'.

    I have always displayed a permit and our current permit runs from Jan 2016 till Jan 2018. However, a new permit was sent to us (the same parking company) in August 2017 which I didn't display it before they issued me with a ticket.

    What ground do I have to appeal this? The 'old' permit was still valid, but would the new permit replace the old one? The old and new permits look almost the same with the same company name etc.

    My management company said they couldn't help because I didn't display the new permit. But my old permit was still valid.

    I have checked the lease, it does say something along the line that we have to follow the arrangement the management company may bring in, even though there is no mention of display of a permit.

    I just find it unfair that my permit was still valid, can they just issue a new permit, catch you out and then issue you with a ticket?

    Also management company said normally the parking company would send in a photo to show how I have contravened with the rule and the reason for the ticket. But there was no photo attached with the ticket and I would think they would look silly anyway if they did take a photo of our car with a valid permit on it.

    Any advice on this would be much appreciated.
Page 3
    • Loadsofchildren123
    • By Loadsofchildren123 13th Oct 17, 10:35 AM
    • 1,757 Posts
    • 2,872 Thanks
    Loadsofchildren123
    That wording is of course good for you.
    How is "Development" and "Reserved Property" defined?
    Do you own the space as part of the "Demised Premises" (or however the latter is defined)?
    • kaych
    • By kaych 13th Oct 17, 11:53 AM
    • 334 Posts
    • 189 Thanks
    kaych
    The Premises
    ALL THAT Apartment forming part of the Building and known or to be known as xxx delineated on Plan 1* and thereon edge red
    TOGETHER WITH
    The doors the glass in the windows and the window fastenings thereof and the interior faces of the ceiling up to the underside of the joists slabs...etc (it keeps going on about walls beams etc)
    All Service Installations used solely for the purpose of the Premises and
    The Balcony (if any) situate outside the main core of the Building and the Premises and the air space occupied thereby
    EXCEPTING AND RESERVING from the demise the main structural parts of the Building including the roofs beams timbers joists… and all Service Installations not used solely for the purpose of the Premises

    *Plan 1 shows the boundary of our flat

    The Reserved Property
    The Reserved Property shall comprise (but not exclusively)
    1. The gardens pleasure grounds roads drives paths forecourts drying areas (if any) bin stores and gardeners management stores (if any) forming part of the Development

    2. The main entrances halls passages landing staircases and other parts of the Building which are used in common by the Owners or occupiers of any two or more of the Apartments and the glass in the windows and doors of all such common parts together with all decorative parts achillary thereto

    3.The main structural parts of the Building including the roofs beams timbers joists foundations cellars floors gutters rainwater pipes all walls bounding individual Apartments the windows frames and all external parts of the Building and all Service installations not used solely for the purpose of one Apartment.

    4. The Facilities

    5. The Commercial Premises

    EXCEPTING AND RESERVING FROM THE RESERVED PROPERTY
    The glass in the windows of the individual Apartments the window fastenings the interior joinery plaster work tiling and other surfaces of walls the floors down to the upperside of the joists slabs or beams to which the same are affixed the Apartments PROVIDED THAT the above description is subject to the declaration as to party walls at the end of Part 1 of the First Schedule hereto and to any similar declaration in the leases of other Apartments

    The Development
    ALL THAT plot of land situated at xx more particularly delineated and described in Plan 2* and thereon edge red TOGETHER WITH the buildings erected or in the course of erection thereon or on some part thereof and comprising self-contained apartments and other communal facilities.

    After typing all of the above out in the lease, I just realise that we don’t actually own our parking space… we have been GRANTED RIGHTS (under PART III DEVELOPMENT SCHEDULE) which states that “the right (to the exclusion of all others) to use the car parking space(s) shaded blue on Plan 3** and numbered or any other parking space(s) allocated by the Developer from time to time within the Development for the purpose of parking one fully taxed and licensed private motor car or motor cycle only”

    *Plan 2 shows a red line boundary plan of our development estate
    ** Plan 3 shows a plan with our basement car park with our allocated bay shaded
    Last edited by kaych; 28-11-2017 at 11:19 AM.
    • kaych
    • By kaych 17th Oct 17, 11:43 PM
    • 334 Posts
    • 189 Thanks
    kaych
    Good evening all, I have put the first draft of my POPLA appeal together, any comments would be greatly appreciated. Thank you all in advance.

    1) Keeper Liability Requirements and the Protection of Freedom Act
    2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge
    3 No Contract was entered into between the Private Parking Solutions (London) Ltd and the Driver or Registered keeper
    4) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
    5) A valid permit was displayed, short notice in the issuance of new permit, system in place to solely penalise residents and legitimate users



    1) Keeper Liability Requirements and the Protection of Freedom Act

    4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
    (2)The right under this paragraph applies only if—
    (a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met; and
    (b)the vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.
    (3)For the purposes of the condition in sub-paragraph (2)(b), the vehicle is to be presumed not to be a stolen vehicle at the material time, unless the contrary is proved.
    (4)The right under this paragraph may only be exercised after the end of the period of 28 days beginning with the day on which the notice to keeper is given.
    (5)The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).
    (6)Nothing in this paragraph affects any other remedy the creditor may have against the keeper of the vehicle or any other person in respect of any unpaid parking charges (but this is not to be read as permitting double recovery).
    (7)The right under this paragraph is subject to paragraph 13 (which provides for the right not to apply in certain circumstances in the case of a hire vehicle).
    Conditions that must be met for purposes of paragraph 4
    5(1)The first condition is that the creditor—
    (a)has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges;


    Private Parking Solutions (London) Ltd is not the landholder. There is a lack of a contract with the lawful occupier of the land being produced by Private Parking Solutions (London) Ltd, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, Therefore, we have reasonable belief that they do not have the authority to issue charges on this land in their own name.

    Guidance on Section 56 and Schedule 4 of the POFA states that if the registered keeper is unable to identify the driver at the time the parking charge was incurred, in order to enforce a parking ticket a landholder first has to be able to show a contract to park existed between the driver and the landholder, and that the terms and conditions of the contract have been broken by the driver.

    So, this is a charge that could only be potentially enforced against a known driver and only by the landholder. The driver has never been admitted and there is no evidence as to the identity of that individual nor proof to show that Private Parking Solutions (London) Ltd is the landholder nor the driver or registered keeper has entered a contract with Private Parking Solutions (London) Ltd, which are further explained in point #3 and #4.

    Schedule 4 also provides for parking charges in England and Wales to be recoverable from the registered keeper where a person trespasses on private land by parking a vehicle on the land without permission. In those circumstances a landowner must be able to show he or she has suffered a loss and justify the damages they are seeking to recover for the trespass.

    As the vehicle has permission and right to park in the parking bay when the ticket was issued, there is no loss to the landholder and no case of trespass. This is further explained in post #3 on Primacy of Contract.


    2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge

    In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

    Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court.

    I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK. Only full compliance with Schedule 4 of the POFA (or evidence that a keeper was the driver) can cause a keeper appellant to be deemed by POPLA to be the liable party. The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

    The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-

    Understanding keeper liability
    “There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

    There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

    No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v ParkingEye in September 2016, where POPLA Assessor Carly Law found:

    ''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''



    3) No Contract was entered into between Private Parking Solutions (London) Ltd and the Driver or Registered keeper

    A contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.

    I request that Private Parking Solutions (London) Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Rights Act 2015

    Primacy of Contract

    No contract was ever formed between Private Parking Solutions (London) Ltd and the registered keeper. A contract, in the form of Lease already exists between the registered keeper (the leaseholder) and the landowner (freeholder) which gives the leaseholder of flat xxx the right to use the parking bay numbered xxx, which the vehicle was parked on the day of the alleged contravention. The photographic evidence provided by Private Parking Solutions (London) Ltd has deliberately missed out the number of the bay. Though this can be easily identified from Plan 3 in the Lease and is located adjacent to bay xxx.

    The Lease is the prime contract between the registered keeper and the landowner. The prime contract cannot be unilaterally altered by one party without the permission of the other. In the case of residential parking, the Lease is the key document. The Lease gives the resident the unfettered right to park and this cannot be altered later, for instance by requiring a permit to park.

    Neither the management company nor Private Parking Solutions (London) Ltd has the authority to interfere with the enjoyment of it, or charge the leaseholders for its usage via a parking penalty or otherwise. In order to override the Lease, a variation of the original Lease would be required, and this can only be agreed by the lessor and the lessee, whom were the parties to the original Lease.

    There is a large body of case law which establishes this. In Saeed v Plustrade Ltd [2001] EWCA Civ 2011 it was found the managing agent could not reduce the amount of parking spaces available to residents. In Jopson v Homeguard [2016] B9GF0A9E, on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading.

    In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

    In Link Parking v Ms P C7GF50J7 [2016] it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.

    In addition, our Lease has no mention of a parking regime i.e. display a parking permit nor any agreement in the Lease of a charge for a breach of parking conditions. The signage onsite is there only to form a contract with drivers and vehicle who do not have the right to be in the basement car park.

    I also rely upon the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016 (transcript attached as evidence for POPLA**).

    District Judge Coonan dismissed the claim and refused leave to appeal, stating: ''I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.''


    4) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

    As Private Parking Solutions (London) Ltd does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what Private Parking Solutions (London) Ltd is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

    Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

    Nor would it define vital information such as charging days/times, any exemption clauses, grace periods and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

    Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

    7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner prior to legal action being taken.

    7.3 The written authorisation must also set out:

    a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

    b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

    c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

    d) who has the responsibility for putting up and maintaining signs

    e) the definition of the services provided by each party to the agreement



    5) A valid permit was displayed, short notice in the issuance of new permit, system in place to solely penalise residents and legitimate users

    A permit has always been displayed, as a courtesy, on our vehicle while we park in our allocated parking bay. A permit was displayed at the time of the alleged contravention. This is clearly shown in the photographic evidence which shows that the permit does not expire until January 2018. However, it should be noted that the display of the permit does not constitute the acceptance of any onerous ‘contract’ with Private Parking Solutions (London) Ltd.

    A letter dated 14th July was sent to the registered keeper with the new permit which the registered keeper would not have received until the 17th July. The new permit became ‘effective’ on the 1 August 2017. 16 days notice is self-evidently inadequate notice that existing permits were going to be unilaterally withdrawn. It was mid summer, it is not unusual for the registered keeper to be out of the country for more than 16 days at a time. It is therefore clearly an inappropriate time to affect such a change. 30 days would be more reasonable and would have permitted further correspondence with the parking company about the use of the existing permits.

    Furthermore, the car park is a resident only car park and can only be accessed by residents or commercial units who hold a fob to enter and leave the car park through an electric gate controlled by the fob. It is clear that Private Parking Solutions (London) Ltd operates in a way that will only penalise legitimate users and residents by forcing a ‘contract’ on residents by displaying signs on site and do so for their own financial gain with no benefits to the residents.
    Last edited by kaych; 18-10-2017 at 7:15 PM.
    • KeithP
    • By KeithP 17th Oct 17, 11:57 PM
    • 4,784 Posts
    • 3,135 Thanks
    KeithP
    On 1 October 2015, the Unfair Terms in Consumer Contract Regulations 1999 were revoked and replaced by the Consumer Rights Act 2015.
    .
    • kaych
    • By kaych 26th Oct 17, 9:06 AM
    • 334 Posts
    • 189 Thanks
    kaych
    Dear all. I have since revised my POPLA appeal and would appreciate any comments before I send this off. Apologies for the long post in advance as I want to cover all the grounds. I also want to double check that I am not shooting myself in the foot by including point 6.

    I have asked our MA to show me the contract they between between PPS and MA/RTM, but haven't heard back. I am assuming that they either don't have one or frantically drawing one up now.

    I will also include the following with my appeal
    1. our lease
    2. photo of our windscreen taken by PPS
    3. photo of their sign at entrance saying they are acting on behalf of the landowner
    4. All cases mentioned in my post
    5. Letter of when the new permit was issued (will only include this if point 6 is used as part of my appeal).

    1) No evidence of Landowner Authority
    2) The Charge is not a genuine pre-estimate of loss
    3) Keeper Liability Requirements and the Protection of Freedom Act
    4) The operator has not shown that the individual who it is pursuing is in fact liable for the charge
    5) No Contract was entered into between the Private Parking Solutions (London) Ltd and the Driver or Registered keeper
    6) A permit was displayed, short notice in the issuance of new permit, system in place to solely penalise residents and legitimate users



    1) No evidence of Landowner Authority

    Private Parking Solutions (London) Ltd has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right. Private Parking Solutions (London) Ltd have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves.

    BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. The sign displayed by Private Parking Solutions (London) Ltd at the entrance of the basement car park states that ‘PPS (L) Ltd acts on behalf of the landowner’. I put Private Parking Solutions (London) Ltd to strict proof of the contract terms with the actual landowner (not a lessee or agent). It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only). No evidence has been supplied lawfully showing that Private Parking Solutions (London) Ltd are entitled to pursue these charges in their own right.

    Furthermore, the Office of Fair Trading’s (OFT) view was that what can be charged to the consumer for trespass/breach of contract will depend on the circumstances and with whom the consumer contracts. A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner’s behalf and enforce for breach of contract. What and whose costs apply stem from this.

    Based on the above, I require Private Parking Solutions (London) Ltd to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for Private Parking Solutions (London) Ltd merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.

    Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

    7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner prior to legal action being taken.

    7.3 The written authorisation must also set out:

    a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

    b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

    c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

    d) who has the responsibility for putting up and maintaining signs

    e) the definition of the services provided by each party to the agreement



    2) The Charge is not a genuine pre-estimate of loss

    It should be noted that the case of ParkingEye Ltd v Beavis [2015] UKSC 67 does not apply here as the basement car park at XX is a residential car park, NOT a commercial car park. Private Parking Solutions (London) Ltd does not have a legitimate interest in charging residents as there is no commercial justification. When the parking bay is not used by the registered keeper, which is also the leaseholder whom has been granted the right to use this specific parking bay, this specific bay cannot be used by others. The vehicle in the parking bay would not cause inconvenience to anyone even when the registered keeper parks his/her fully taxed and licenced vehicle in the allocated bay 24 hours a day for 365 days a year.

    The basic legal principle is that any clause which requires a party who breaches the terms of the contract to either pay or forfeit a sum of money to the other party (a ‘penalty clause’) is deemed unlawful, unless such payment or forfeiture can be justified as a genuine pre-estimate of the loss which the other party will suffer as a consequence of the breach.

    Their Notice to Keeper states that ‘those drivers who break the terms and conditions of parking are liable to pay a charge’ so Private Parking Solutions (London) Ltd must prove the charge to be a genuine pre-estimate of loss.

    To claim direct losses for trespass or breach of contract, the company or landowner must prove what the actual losses that were caused by that individual’s breach were. However, if the claim is for liquidated damages, the Office of Fair Trade’s (OFT) view is that the liquidated damages that can be recovered are a genuine pre estimate of loss. This is not the same as having to prove, in every case, the actual loss caused by the actual breach.

    The OFT expressed the view to the British Parking Association that when claiming liquidated damages, they must meet the requirement of being a genuine pre estimate of loss. If back office functions are claimed, these must be directly caused by the breaches of contract. The OFT’s view was that if you have an office anyway and have to pay rent, rates, insurance, etc., this cannot be attributed to the breach and claimed as costs, as these are the costs of running a parking management company. To be recoverable, all costs, whether in contract or tort, must be caused by the breach.

    The maintenance of the basement car park at XX forms part of the service charges which are paid by the leaseholders. The right to use the parking bay is granted by the landowner to leaseholders by paying the ground rent (Please refer to Plan 3 and Part III, Schedule 2, Section 8 of the Lease). There is no further payment that the leaseholders need to make when using the allocated car parking bay and neither would Private Parking Solutions (London) Ltd incur any loss as a result of the leaseholder using the bay. There can therefore be no loss to Private Parking Solutions (London) Ltd and there is no loss flowing from the parking events.

    Private Parking Solutions (London) Ltd cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver’s alleged breach.

    The DfT Guidance clearly states that ‘in considering appeals, POPLA is able to consider whether a landholder who is a member of an appropriate ATA has behaved reasonably. This includes whether any parking charges are based on a genuine pre-estimate of loss’.

    Private Parking Solutions (London) Ltd is neither the landholder nor has proven that the charge is a genuine pre-estimate of loss. The charge is neither a commercially justified penalty nor the charge can be deemed necessary as deterrent as the vehicle has every right to be in the parking bay when the parking charge was issued. This makes their parking charge unlawful and unenforceable.

    3) Keeper Liability Requirements and the Protection of Freedom Act

    4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
    (2)The right under this paragraph applies only if—
    (a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met; and
    (b)the vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.
    (3)For the purposes of the condition in sub-paragraph (2)(b), the vehicle is to be presumed not to be a stolen vehicle at the material time, unless the contrary is proved.
    (4)The right under this paragraph may only be exercised after the end of the period of 28 days beginning with the day on which the notice to keeper is given.
    (5)The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).
    (6)Nothing in this paragraph affects any other remedy the creditor may have against the keeper of the vehicle or any other person in respect of any unpaid parking charges (but this is not to be read as permitting double recovery).
    (7)The right under this paragraph is subject to paragraph 13 (which provides for the right not to apply in certain circumstances in the case of a hire vehicle).


    Conditions that must be met for purposes of paragraph 4
    5(1)The first condition is that the creditor—
    (a)has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges;

    Private Parking Solutions (London) Ltd is not the landholder. There is a lack of a contract with the lawful occupier of the land being produced by Private Parking Solutions (London) Ltd, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, Therefore, we have reasonable belief that they do not have the authority to issue charges on this land in their own name.

    Guidance on Section 56 and Schedule 4 of the POFA states that if the registered keeper is unable to identify the driver at the time the parking charge was incurred, in order to enforce a parking ticket a landholder first has to be able to show a contract to park existed between the driver and the landholder, and that the terms and conditions of the contract have been broken by the driver.

    So, this is a charge that could only be potentially enforced against a known driver and only by the landholder. The driver has never been admitted and there is no evidence as to the identity of that individual nor proof to show that Private Parking Solutions (London) Ltd is the landholder nor the driver or registered keeper has entered a contract with Private Parking Solutions (London) Ltd.

    Schedule 4 also provides for parking charges in England and Wales to be recoverable from the registered keeper where a person trespasses on private land by parking a vehicle on the land without permission. In those circumstances a landowner must be able to show he or she has suffered a loss and justify the damages they are seeking to recover for the trespass.

    As the vehicle has permission and right to park in the parking bay when the ticket was issued, there is no loss to the landholder and no case of trespass.


    5) The operator has not shown that the individual who it is pursuing is in fact liable for the charge

    In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

    Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court.

    I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK. Only full compliance with Schedule 4 of the POFA (or evidence that a keeper was the driver) can cause a keeper appellant to be deemed by POPLA to be the liable party. The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

    The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-

    Understanding keeper liability
    “There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

    There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

    No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v ParkingEye in September 2016, where POPLA Assessor Carly Law found:

    ''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

    5) No Contract was entered into between Private Parking Solutions (London) Ltd and the Driver or Registered keeper


    A contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.

    I request that Private Parking Solutions (London) Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Rights Act 2015.

    Primacy of Contract

    No contract was ever formed between Private Parking Solutions (London) Ltd and the registered keeper. A contract, in the form of Lease already exists between the registered keeper (the leaseholder) and the landowner (freeholder) which gives the leaseholder of flat XX the right to use the parking bay numbered XX, which the vehicle was parked on the day of the alleged contravention. The photographic evidence provided by Private Parking Solutions (London) Ltd has deliberately missed out the number of the bay. Though this can be easily identified from Plan 3 in the Lease and is located adjacent to bay XX.

    The Lease is the prime contract between the registered keeper and the landowner. The prime contract cannot be unilaterally altered by one party without the permission of the other. In the case of residential parking, the Lease is the key document. The Lease gives the resident the unfettered right to park and this cannot be altered later, for instance by requiring a permit to park.

    Neither the management company nor Private Parking Solutions (London) Ltd has the authority to interfere with the enjoyment of it, or charge the leaseholders for its usage via a parking penalty or otherwise. In order to override the Lease, a variation of the original Lease would be required, and this can only be agreed by the lessor and the lessee, whom were the parties to the original Lease.

    There is a large body of case law which establishes this. There is a case law which establishes on the primacy of a lease over a parking contract. In Link Parking Ltd vs Jayne Gaynor Parkinson [2016] C7GF50J7 it was that the parking company could not override the tenant's right to park by requiring a permit to park.

    The judge concludes that ‘There is no evidence before me to suggest that they have in any way undertaken steps to vary the lease, and I am not satisfied on the evidence before me that section 21 supplies such that by engaging the company they have applied new and binding regulations on the leaseholders. A mere letter regarding permits would not, in my judgement, suffice in this regard.

    In Saeed v Plustrade Ltd [2001] EWCA Civ 2011 it was found the managing agent could not reduce the amount of parking spaces available to residents. In Jopson v Homeguard [2016] B9GF0A9E, on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading.

    In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

    In addition, our Lease has no mention of a parking regime i.e. display a parking permit nor any agreement in the Lease of a charge for a breach of parking conditions. The signage onsite is there only to form a contract with drivers and vehicles which do not have the right to be in the basement car park.

    I also rely upon the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016 (transcript attached as evidence for POPLA**).

    District Judge Coonan dismissed the claim and refused leave to appeal, stating: ''I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.''

    6) A permit was displayed, short notice in the issuance of new permit, system in place to solely penalise residents and legitimate users

    A permit has always been displayed, as a courtesy, on our vehicle while we park in our allocated parking bay. A permit was displayed at the time of the alleged contravention. This is clearly shown in the photographic evidence which shows that the permit does not expire until January 2018. However, it should be noted that the display of the permit does not constitute the acceptance of any onerous ‘contract’ with Private Parking Solutions (London) Ltd.

    A letter dated 14th July (Friday) was sent to the registered keeper with the new permit which the registered keeper would not have received until the 17th July (Monday). The new permit became ‘effective’ on the 1 August 2017. 14 days notice is self-evidently inadequate notice that existing permits were going to be unilaterally withdrawn. It was mid summer, it is not unusual for the registered keeper to be out of the country for more than 14 days at a time. It is therefore clearly an inappropriate time to affect such a change. 30 days would be more reasonable and would have permitted further correspondence with the parking company about the use of the existing permits.

    Furthermore, the car park is a resident only car park and can only be accessed by residents or commercial units who hold a fob to enter and leave the car park through an electric gate controlled by the fob. It is clear that Private Parking Solutions (London) Ltd operates in a way that will only penalise legitimate users and residents by forcing a ‘contract’ on residents by displaying signs on site and do so for their own financial gain with no benefits to the residents. Their behaviour is therefore not considered reasonable and does not comply with the advice of the DfT.
    Last edited by kaych; 26-10-2017 at 2:30 PM.
    • KeithP
    • By KeithP 26th Oct 17, 12:05 PM
    • 4,784 Posts
    • 3,135 Thanks
    KeithP
    You are still referring to obsolete legislation.

    Re-read post #44 again.
    .
    • nosferatu1001
    • By nosferatu1001 26th Oct 17, 1:32 PM
    • 1,185 Posts
    • 1,226 Thanks
    nosferatu1001
    As above

    OP - seriously, on every single piece of legislation that you cite, go and check its still valid. Especially when youre told not only whihch one is out of date, but also what replaced it.
    • kaych
    • By kaych 26th Oct 17, 2:40 PM
    • 334 Posts
    • 189 Thanks
    kaych
    Sorry KeithP and nosferatu1001! I edited the legislation in post #43 when KeithP commented on it. But I forgot to amend it in my word document on my computer, I have definitely done it on my computer and in the post now!
    Sorry about the oversight. I understand that this may be annoying for you guys as you have been providing helpful advice and I may seem ungrateful by not not making the necessary changes.
    I just want to say that I really appreciate all the help everyone has given me on this forum.
    • kaych
    • By kaych 7th Nov 17, 3:46 PM
    • 334 Posts
    • 189 Thanks
    kaych
    Just a quick update on this. POPLA appeal submitted on Sunday and a debt collection letter received today. so they can't even be bothered to wait for the outcome of the POPLA appeal. Will be in ignore mode until I receive a decision from POPLA.

    Surely they have breached the data protection act already by sharing our details with a debt recovery company?
    • kaych
    • By kaych 28th Nov 17, 11:17 AM
    • 334 Posts
    • 189 Thanks
    kaych
    In case anyone is still reading this thread, I will continue to update my status until the case is closed.

    I have just received an email from POPLA, which is addressed to the PPS below:

    Dear Private Parking Solution (London),

    Thank you for contacting POPLA.

    We will be unable to allow you an extension to provide your evidence. We would not allow the appellant to submit a late appeal for the reason you have provided. Therefore, we are unable to allow you an extension to provide your evidence.

    The appeals is now waiting for assessment, as soon as a decision has been made you will be contacted.

    Yours Sincerely,

    POPLA Team


    I haven't got a chance to review whatever they have submitted and can't seem to find the documents on the POPLA website. So it looks like POPLA either doesn't allow comments from appellant on the evidence anymore or PPS hasn't submitted anything?
    • DoaM
    • By DoaM 28th Nov 17, 11:31 AM
    • 3,591 Posts
    • 3,634 Thanks
    DoaM
    That notice is saying the PPC is late in providing evidence, therefore there is NO evidence for you to review and rebut. Hence it should be a slam-dunk win for you.

    (At least that's how I read what you've written).
    Diary of a madman
    Walk the line again today
    Entries of confusion
    Dear diary, I'm here to stay
    • Loadsofchildren123
    • By Loadsofchildren123 28th Nov 17, 11:46 AM
    • 1,757 Posts
    • 2,872 Thanks
    Loadsofchildren123
    I agree. They seem to have asked for an extension of time to respond, and POPLA has (quite rightly) said no. They haven't responded, hence nothing is showing on the site. Once their time for responding has passed, it seems that you will get an automatic win.
    • kaych
    • By kaych 6th Dec 17, 2:00 PM
    • 334 Posts
    • 189 Thanks
    kaych
    Yup you guys are right. We have won the appeal. Thank you everyone for the help and support

    I am going to see what I can do now next and make a formal complaint to our management company.
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