Assigned Residents Space Without Displayed Permit

scoopster13

Hi, I'm new to all this so please bear with me!

I live in a flat with an allocated parking space.

My old permit ran out on the 01/08, my new permit arrived this morning in the post (02/08). I parked up this morning in my usual spot after working a night shift, went down to check the post about 2 hours later and found my new permit, went to my car to put it in the window and theirs a ticket for £100.

I've appealed via the UKPC, faxing over a copy of my new permit also explaining the above, however after reading a few posts on this forum I think maybe this was the wrong thing to do. Anyone got any advice on what to do next please!!!

Guys_Dad

OK. On this forum we work a One problem per thread system. Saves getting confusing info.

So, please just start a new thread and someone will help you. But would you add to your post exactly who is responsible for issuing the permits - the PPC, the management company or who?

Thanks.

Coupon-mad

scoopster13 wrote: »

Hi, I'm new to all this so please bear with me!

I live in a flat with an allocated parking space.

My old permit ran out on the 01/08, my new permit arrived this morning in the post (02/08). I parked up this morning in my usual spot after working a night shift, went down to check the post about 2 hours later and found my new permit, went to my car to put it in the window and theirs a ticket for £100.

I've appealed via the UKPC, faxing over a copy of my new permit also explaining the above, however after reading a few posts on this forum I think maybe this was the wrong thing to do. Anyone got any advice on what to do next please!!!

Start a new thread when you get their rejection letter, as you will need help to win a POPLA appeal. Didn't know UKPC accepted faxed appeals, are you sure? Read up on other threads in the meantime on the first page of the forum and read about POPLA appeals in particular:

http://forums.moneysavingexpert.com/forumdisplay.php?f=163

Blue 'new thread' button beckons!

blawford

Been a while but this is still ongoing.

I sent an appeal along the lines that were given above, they replied asking me to provide a copy of my permit for them to look into. I did so and they came back to me saying they have reviewed things and are sure that the fine was correctly issued but offered to allow me to pay £15 instead of the £90 that I should.

I was provided a POPLA appeal letter, can someone please give me some advice on where to go from here?

bod1467

Tell them to go do a running jump?

Use the POPLA code! (WHEN did you get it? See this article about how to decipher it).

Coupon-mad

Once you've deciphered the POPLA code to check how long you have to use it, read the 'newbies read this first!' sticky thread which has a POPLA section including 'how to win at POPLA' with examples of wording. Don't send a normal appeal to POPLA 'about the permit' at all or you'll lose. We win 100% of the time now with our wording - which has nothing at all to do with whether a permit was showing or not.

It's not a fine of course and you owe them nothing so take your chance to beat them at POPLA with the right wording.

blawford

Thanks, I have found the following you posted which seems to be appropriate for my circumstances:

Dear POPLA

Appeal re verification code xxxxxxxxxx CPM PCN number xxxxxxx

I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.

1. The contradicting and unclear signage which creates no contract between a driver and CPM.

2. The amount demanded is not a Genuine Pre-estimate of loss.

3. I require the contract with the landowner is produced, as CPM are not the landowners and I contend they have no legal standing to pursue this charge.

Please find below detailed information about the points raised above.

1. To the point of the signage I have taken the effort to showcase some issues I have found which demonstrate that the signage is not compliant with Appendix B and section 18 of the BPA Code of Practice. Please note that one image attached is of the entrance to the car park where it is impossible to see any CPM signs at all from the driver’s side of a vehicle.

As an AOS member, their entrance signage must be prominent and readable from a seated position, with terms & conditions in the driver's clear view on arrival when a vehicle first turns into a car park. In this car park CPM have failed in this regard, especially when there is another sign which is prominent. As you can see from the photo attached, there is a clear sign from the Housing Association with whom I have a contract as an authorised and paying tenant. This HA sign is visible on arrival and clearly states “Parking for Residents and Visitors only” and that is the express permission upon which I rely as a tenant, that I am authorised to park there.

This HA sign introduces no contractual requirements for displaying permits, nor does it warn of any repercussions for not displaying any permit, nor any 'contraventions' at all if the driver is a resident or visitor. I am a tenant so I accept my right to park from the HA, not from a third party agent who may have another sign on site but cannot re-offer these same parking spaces on different terms from the HA offer. And this is an operator which my photos show, has failed to meet the strict BPA requirements for clear entrance signs. The entrance is where any alleged parking contract with a driver must be made - and I deny any contract was made between myself and CPM since there was no consideration, and no offer nor acceptance.


2. This charge does not represent a genuine pre-estimate of loss and therefore is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. CPM may try to allege their minimal signage creates a contractual agreement, but this is denied. In any case, CPM's letter clearly states that this parking incident relates to an alleged 'breach of contract' (their words). So the entirety of the parking charge must be a genuine pre-estimate of loss in order to be possibly enforceable. CPM in this case cannot possibly justify £100 as a genuine pre-estimate of loss.

The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. Parking charges cannot include tax-deductible business costs for running a parking company, such as site signage and maintenance, staff employment, membership fees, postage, etc. It shouldn’t be recoverable as it is being enforced purely as a penalty. Since there is no other income at this site, these PCNs represent the only profit for CPM and it is clear that they cannot be operating at a permanent loss.


3. I put CPM to strict proof that they have the proper legal authorisation from the landowner to contract with drivers and to enforce charges in their own name as creditor in the courts for breach of contract. To show compliance with the BPA CoP section 7, I require CPM to produce the landowner contract - not just an inadmissible 'witness statement' saying such a contract exists - since they do not own the land. I contend that any business arrangement for parking services (if it exists) is merely an agency matter between the landowner and CPM and cannot impact upon drivers or keepers whose tenancy grants them the overriding legal right to peaceful enjoyment of their property (including parking spaces).

It has also been widely reported that some parking companies have provided photocopied “witness statements” instead of the relevant contract. These highly questionable documents from parking operators have been exposed in the public domain as sometimes having had the date added after 'witness signature' by another person, adding a random date to suit a court or POPLA case. These witness statements are therefore not relevant to a specific event and the details are far too unreliable to confirm compliance of the contract as defined in the BPA CoP and would fail to meet the level of certainty required for a POPLA or court decision. If CPM produce a 'witness statement' I contend that there is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted instead of the landowner contract itself, that this is disregarded and that the Chief Adjudicator is required to investigate this issue and consider carefully the serious irregularities known about these documents if the assessor in my case is minded to consider one as evidence.

Finally, a third party agent cannot pursue such a charge anyway, as was found in ParkingEye v Sharma: Case No. 3QT62646 in the Brentford County Court23/10/2013. District Judge Jenkins dismissed the case on the grounds that the parking contract was a commercial matter between Parking Eye and the landowner, and didn’t create any contractual relationship with motorists who used the car park. I submit that this applies in this case as well.

Yours,

I guess I just need to check whether the letters I received actually mention a 'breach of contract' and check/photograph signs at the entrance to my development? Oh, and find replace 'CPM' with 'UKPC'!

The spaces are assigned and I was parked in the one which belongs to my flat (therefore I am not denying anyone else a space as only I have the right to use it), is it worth mentioning that fact somewhere in there (section 2?).

Many thanks.

Coupon-mad

There's more with UKPC, and you need to remove the irrelevant stuff from that appeal (such as the specific bits like : 'as you can see from the photo attached, there is a clear sign from the Housing Association with whom I have a contract as an authorised and paying tenant. This HA sign is visible on arrival and clearly states “Parking for Residents and Visitors only” and that is the express permission upon which I rely as a tenant, that I am authorised to park there.'). Unless that's exactly the case for you and you are also attaching a photo of a Housing Assoc sign?!

You'd be better using a UKPC one as your template because there's a great quote from the the UKPC website you must include, see here:

https://forums.moneysavingexpert.com/discussion/comment/63438874#Comment_63438874

That's more relevant perhaps, or make a hybrid of the two.

blawford

Thanks for the pointers, I have written up the following, can you take a look before I send it? I will need to do so quite quickly as I think I am 23 days into my 28 day period. (POPLA code 8663183684)

On XX/XX/XX I was the Registered Keeper of XXXX XXX. On this day at 3:13AM my vehicle was issued with a Parking Charge Notice by UKPC.

I wish to contest this parking charge on a number of grounds:

1. Insufficient/Unclear Signage
2. Lack of Proprietary interest in the land
3. Exposure of UKPC / Landowner contract to examine their authority
4. Punitive Charge and therefore I believe a penalty
5. The Charge is not a Genuine Pre-estimate of loss
6. Failure to follow Procedure

On all correspondence with UKPC their letters and website clearly state:

“Operating in accordance with the British Parking Association’s Code of Practice”

This is not the case:

1. Insufficient and Unclear Signage.

The BPA Code of Practice June 2103 clearly states:

“18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.”

There are NO entrance signs belonging to UKPC in this car park, therefore the driver is not warned before entering the car park of UKPC’s Terms and conditions. Please find attached a photo of the entrance to the development (Entrance.jpg).

“18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.”

There are only 2 signs belonging to UKPC in the whole car park, and only one with can be seen on route to the underground structure where the assigned residents bay is located (Underground.jpg). I don’t believe this sign is noticeable enough to meet the conditions set out in section 18.3 quoted above, especially as you would not necessarily walk past it when leaving the car park.
 
2. Lack of Proprietary Interest in the Land.

I do not believe that the operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give UKPC any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, UKPC lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge.

3. Exposure of UKPC / Landowner Contract.

I contend that UKPC are only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered
I believe there is no contract with the landowner/occupier that entitles them to levy these charges and therefore has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to UKPC. I expect to prove that they are not in breach of section 7.1 of the BPA code, which would detail any land boundaries.

Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between UKPC and the owner/occupier, containing nothing that UKPC can lawfully use in their own name as a mere agent, that could impact on a third party customer.

I requested this information from UKPC in my previous appeal and they refused to produce any document, I therefore ask POPLA to require UKPC to provide the full, un-redacted and contemporaneous copy of the contract between them and the landowner to prove they have authority to make charges, to pursue those charges up to and including county court. If UKPC supply a 'Witness Statement' to confirm a contract exists, this will not be acceptable.

4. Punitive Charge and therefore I believe a penalty.

I believe the charge that UKPC are levying is punitive, contravening the Unfair Contract Terms Act 1997 and therefore void.
The charge of £90 is arbitrary and in no way proportionate to any alleged breach of contract.

The charge UKPC are levying is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e)
"Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation."

Furthermore, Regulation 5(1) states that:

"A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer"

5(2) states:

"A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term."

This transparently punitive charge by UKPC is a revenue-raising exercise and is therefore unenforceable in law. UKPC's own website is damning in this regard:

ukparkingcontrol.com/faq.html

From UKPC website December 2013 Frequently Asked Questions:

“Q: How much would it cost us to use your parking management services?
A: Nothing at all! We provide parking management services to our clients free of charge (subject to site survey).”

“Q: So how do you earn your money?
A: Our revenue is generated from the parking charges issued. In many instances we are also able to provide a client revenue rebate of 10%.”

5. The Charge is not a Genuine Pre-estimate of loss

I consider the PCN to be a penalty because UKPC have alleged a breach of terms and conditions and yet have not quantified their alleged loss.

It is a strict requirement in the BPA code of Practice that a charge for 'breach' must represent a genuine pre-estimate of loss. The entirety of the parking charge must be a genuine pre-estimate of loss, flowing from a breach of the parking terms, in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement would still have been the same.

I therefore ask POPLA to require UKPC to provide a fully detailed breakdown of their genuine losses that arrive at the (£90) charge claimed. Please also note the erection of signs, back office staff, hi-viz jackets, membership fees to the BPA are general running costs that they would be liable for whether or not you parked there and as such cannot be included in their alleged loss calculations.

All parking spaces within the development are individually assigned and the vehicle was parked in the correct space at the time it was ticketed, there is no entitlement for any other vehicle to use the parking space in question and therefore no loss has or could have occurred.

In addition, the Office of Fair Trading information to the BPA about parking charges states on page 2 that these are not automatically recoverable:

''Further, the OFT expressed the view that a parking charge will not automatically be recoverable, simply because it is stated to be a parking charge. It cannot be used to create a loss where none exists. It will not be recoverable if the court finds that it is being imposed as a penalty. If a parking charge is imposed for parking beyond hours permitted under a contract, in order for it to be recoverable as liquidated damages, the court will need to be satisfied of a number of matters, including that it represents a genuine pre-estimate of the loss incurred and that it meets the requirements of applicable consumer protection legislation, for example the Unfair Terms in Consumer Contracts Regulations 1999”.

6. Failure to follow Procedure.

In my initial appeal I stated:

“If you reject this challenge the keeper requires within 35 days a POPLA verification code for them to appeal independently, per the POPLA web site.

The keeper has nothing further to add, and will not respond to any correspondence from your company unless it contains the POPLA code.”

However in their rejection of my appeal they failed to supply the relevant forms and/or code which they were requested and required to supply.

In light of the breaches of the BPA’s code of practice listed here and all other points raised I feel this charge should be cancelled forthwith.

Regards
XXXXXXXXX

Also, what box should I tick on the POPLA form, all 3 except "the vehicle was stolen" are applicable.

Coupon-mad

Yes, tick all 3 except the stolen one, that's what I say.

Personally I would do this online to POPLA instead, because you can't be sure that a postal appeal will arrive in time in the Christmas post next week - and POPLA kick them out if they arrive late - all your hard work would have gone to waste. You can add evidence online as attachments as well (your signage photos) and you get an acknowledgement by return.

I would add a little to the no pre-estimate of loss and I would make that point #2 underneath 'signage', as those two points are the likely winners. So to your wording here I would add:


All parking spaces within the development are individually assigned and the vehicle was parked in the correct space at the time it was ticketed, there is no entitlement for any other vehicle to use the parking space in question and therefore no loss has or could have occurred. The permit was in fact displayed on the dashboard along with the tax disc, due to a new windscreen just being fitted, and in peering at my vehicle permit/tax documents at 3am in an unlit car park I suggest the operative was, at best, mistaken; or at worst, disingenuous. Clearly there was no loss here.

And it seems that UKPC themselves now agree there was no such loss to the tune of £90 - because they replied recently suddenly replacing the £90 charge with a laughable 'offer' to accept £15 (presumably expecting me to pay for their mistake). This hugely reduced 'offer', in addition to their website admission that they 'make all their revenue from PCNs' (see the quote from their website under the 'Punitive Charge' point) demolishes any argument UKPC may attempt to now put forward to try to convince POPLA that there was ever a £90 loss on this occasion.