Ticket for parking in my own bay?!

Coupon-mad

I wouldn't include your own GPEOL in a POPLA appeal, as IMHO it isn't appropriate for POPLA, not from you.


This bit should be in point #4:

Also as the driver is the owner of the parking space, how can parking in the space cause a loss? Please note that the owner was totally unaware of the parking management commenced by Brady Estates, the Property Manager in July 2010 as there had been no contact to request permission for the arrangements and therefore trespass has been committed. When questioned Brady Estates sent a copy of a letter put through the doors of the flats in June 2010 which the owner received on 14th April 2014. The owner of the flat did not get advised by the residents at the time or since of the changes and the lease contract has not been amended to say that a permit must be displayed. The owner has not given permission to enter the property for UK CPM to be allowed to place parking charge notices on any vehicle in the parking space.

And I don't think you need point #2 as it repeats point #1. And as it's a long appeal I would also get rid of 'grace periods' as it won't win a POPLA appeal ( a breach of the CoP does not in itself win at POPLA).

Once you do submit it (wait and see what others say) be ready for UKPCM's evidence email and to rebut their GPEOL statement at that stage quickly before the decision is made, so you get the last word.

Sparsholt

Thank you Coupon-mad. I have made the amendments you have suggested and will await further feedback before sending as I am well within the time period.
I really appreciate you taking the time to read my draft.
Thanks again

The_Deep

That is an appeal and a half OP, what a waste of your time.

I would have told them to go !!!! themselves. I hope that you make them pay for their stupidity once a Popla assessor takes the easy way out and allows the appeal on GPEOL. He/she will probably spend a fraction of the time adjudicating it than you did writing it.

bazster

Jesus wept, I just can't believe this thread. I agree 100% with The Deep, should've just told them to FRO.

If someone robbed your house would you accept an offer of adjudication by the British Thieves and Robbers Association Appeal Service?

Sparsholt

This is the amended/ shorter version. Thank you Coupon-Mad.




I am the registered keeper and I wish to appeal this charge on the following grounds:-



1. Charge not a genuine pre-estimate of loss
2. Unclear, Inadequate and Non-Compliant Signage
3. Contract with the Landowner - Not Compliant With the BPA Code of Practice
4. Summary

1. CHARGE NOT A GENUINE PRE-ESTIMATE OF LOSS
1) a) The Charge is not a contractual fee – it is a disguised breach

The Operator has attempted to avoid the necessity of having to justify a pre estimate of loss by stating that this is a contractually agreed fee on their signage. However on both the parking charge notice (which is described as exactly that, NOT an invoice for an agreed fee) and the rejection letter to my appeal they state that the charge is having "breached" the terms and conditions of parking. In addition, the wording on their sign also states that "unauthorised parking or parking a vehicle in an area or space that has not been designated to you may result in your vehicle receiving a parking charge notice". Note, that as the driver is also the owner of the space parked in, permission had been granted through the lease. Title number HP666791 shows that flat and parking space as the property. The lease dated 20th December 2006 only requirement regarding the parking space is clause 5.3.3 which states “Not to use the Parking Space for any purpose other than the parking of a private fully taxed insured and roadworthy motor vehicle not exceeding 1.5 tonnes”. There is no requirement to display a parking permit.


Also the lease cannot be altered to include the requirement to display a permit unless all leesees agree.


The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be consideration, it would have to mean that permission to park without a permit was given providing a fee was paid. Clearly permission to "park in breach" cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.

I would like to highlight a similar appeal against UK CPM where POPLA assessor Marina Kapour found that:

"The charge must either be for damages as submitted by the Appellant, or for consideration - the price paid for the parking as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay provided he or she pays the charge. Clearly, permission to park 'in breach' is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge and so it cannot be consideration".

I would also highlight POPLA appeal reference 9663053967 where an initially refused appeal against the same Operator who again, made the same attempt to describe the charge as a contractually agreed fee on their signage was allowed by the Lead Adjudicator. It was found that the charge was a penalty and as such was not a genuine pre estimate of loss. I contend that the same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee but is a disguised breach and must be shown to be a genuine pre estimate of loss to be enforceable.


In their letter rejecting my appeal dated 15th July 2014, UK CPM have clearly stated that their fixed fee/ charge of £100 is not a genuine pre-estimate of loss but a breach of the Terms and Conditions of parking.


Also as the driver is the owner of the parking space, how can parking in the space cause a loss? Please note that the owner was totally unaware of the parking management commenced by Brady Estates, the Property Manager in July 2010 as there had been no contact to request permission for the arrangements and therefore trespass has been committed. When questioned Brady Estates sent a copy of a letter put through the doors of the flats in June 2010 which the owner received on 14th April 2014. The owner of the flat did not get advised by the residents at the time or since of the changes and the lease contract has not been amended to say that a permit must be displayed. The owner has not given permission to enter the property for UK CPM to be allowed to place parking charge notices on any vehicle in the parking space.


In Winchester County Court on the 21st January 2013 in a claim Davey v UK Parking Control Ltd in an order by consent gave undertakings to the Court not to enter the land and not to place any parking charge notices on the cars; to pay damages for trespass in a total of £150.00 and to pay the claimants costs of £1,280.26.


b) The Charge is Not a Genuine Pre Estimate of Loss

The charge of £100 is being sought for an alleged breach of the parking terms namely “parking without displaying a valid permit” consequently I contend, and the BPA code of practice states, that a charge for breach must be based on the genuine pre estimate of loss.


The Office of Fair Trading has stated to the BPA 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.

On the day in question, the driver had parked in the correct bay which is owned by the driver, there was no damage or obstruction caused (nor is any being alleged) and I therefore contend there was no loss caused to either the Operator, or the landowner, by any alleged breach.

In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated that a stipulation "will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach" and "there is an assumption that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

As the charge in this case is the same lump sum whether the vehicle is parked for 10 minutes or for 24 hours and the same amount are charged for any alleged contravention, it is clear that this is punitive and that no consideration has been given to calculating a genuine pre estimate of loss in this case.

In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred to either the Operator or to the Landowner.

I therefore requested in my letter dated 3rd April 2014 to UK CPM to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach. In their reply dated 15th July 2014 they list the following:-

• Attendant patrols with related costs
• Maintenance of motoring equipment
• PCN processing
• Cost of handling motorists appeals including the response and DVLA fees and membership fees
• ATA membership
• ICO membership

They state that the combined cost of all the above is calculated at £100 per parking charge notice, thus being a genuine pre-estimate of loss.


Operational business costs cannot possibly flow as a direct result of any breach as UK CPM would be in the same position whether or not any breaches occur.

I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.

UK CPM have stated that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.

This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier - there was no initial loss.

Christopher Adamson stated in a POPLA appeal against VCS Ltd that

"the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonable moved away from a strict interpretation of what constitutes a genuine pre estimate of loss, recognising that in complex commercial situations an accurate pre estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified".

In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said:

"the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".

The same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can neither be commercially justified or proved to be a genuine pre estimate of loss.


The BPA Code of Practice states that the charge cannot be punitive or unreasonable. UK CPM has chosen the maximum sum stipulated by the BPA with no consideration as to what is reasonable and I therefore challenge UK CPM to prove that the fee is not punitive and unreasonable. The Unfair Terms Consumer Contracts Regulations 1999 are relevant, in particular Regulations 5(1) and 5(2).

2. UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE
The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and driver. Following the receipt of the parking notice charge the driver/ owner and I looked for the signage at the entrance to the car park and found none. I enclose photographs of the entrance area to prove this.


The BPA code of practice February 2014 clearly states that “entrance signs located at the entrance to the car park must tell drivers that the car park is managed and that there are terms and conditions which they must be aware of. Entrance signs must meet 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 follow Department for Transport guidance.” The code also states that the sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.


The code states that "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".

There is no entrance sign to the land and thus no warning that a driver is entering a managed parking area. A driver cannot therefore be expected to look for other signs, especially if they are not visible from the driver’s side of the car. When we did locate the signs there were only two, one at either end of the car park which are not visible in the driver’s eye line. The signs are so high that there was no chance a driver arriving would see them, let alone be able to read them at a distance.


UK CPM state in their rejection letter that “it is the driver’s responsibility to ensure the restrictions are met at all times prior to leaving the vehicle unattended within the parking bay. This statement is irrelevant if there is no entrance sign and the onus is on UK CPM to prove that the driver saw, read and accepted the terms of their extortionate contract.


When we did find the signs, the wording does not clearly advise authorised users of the car park that they need to comply with the terms and conditions. The sign is headed “Private Property” so as a resident or owner who has a right to park in the car park you think this sign is for other people who are not resident or owners.


The sign also states ‘TERMS OF PARKING WITHOUT PERMISSION’, as the driver/ owner clearly had permission to park on their land, then this therefore nulls any further conditions stated on the sign.


I have taken photographs myself for the purpose of rebuttal should the need arise and would once again remind UK CPM of the requirement to submit copies of any evidence to the Appellant allowing sufficient time for consideration and rebuttal. I require that UK CPM provides documentary evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements.

I contend that the signs on this land (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]).


In summary the signage at the site fails to meet the requirements for signage in the BPA Code of Practice section 18 and Appendix B and I also argue that UK CPM have failed to have established beyond doubt that the driver saw any signs at all when parking.

3. CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND/OR NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES
The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary nor agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. UK CPM state in their rejection letter that they hold a valid contract with the Freeholder (whereas the managing agent states that the arrangement was set up by themselves – Brady Estates) to monitor the parking bays/ areas on behalf of them. This entitles their operatives to issue parking charge notices to all vehicles found parked in breach of the restrictions within the restricted area. Therefore I believe that they have confirmed that they only hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a managing agent). I also require proof that they have obtained the owners (via the lease dated 20th December 2006) agreement to the arrangement and have permission to enter the bay and issue any tickets. The owner would very much like to see her signature on such an agreement. The owner has stated that she has not made an agreement or known about the parking management and that UK CPM has trespassed on her property.


Also as the driver is the owner of the parking space, how can parking in the space cause a loss? Please note that the owner was totally unaware of the parking management commenced by Brady Estates, the Property Manager in July 2010 as there had been no contact to request permission for the arrangements and therefore trespass has been committed. When questioned Brady Estates sent a copy of a letter put through the doors of the flats in June 2010 which the owner received on 14th April 2014.


The owner of the flat did not get advised by the residents at the time or since of the changes and the lease contract has not been amended to say that a permit must be displayed. The owner has not given permission to enter the property for UK CPM to be allowed to place parking charge notices on any vehicle in the parking space.

I put UK 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. I require UK CPM to produce the landowner contract – not just to state in a letter that they have a contract (as per the rejection letter).


UK CPM cannot impact upon drivers or keepers whose lease or tenancy grants them overriding legal right to peaceful enjoyment of their property (including parking spaces).


I contend that UK CPM have no such authority at this site and are merely a parking agent providing a service to the Managing Agent but with no assignment of title and no more legal standing than any agent/ contractor. A third party agent cannot pursue such a charge anyway as was found in ParkingEye v Sharma: Case No 3QT62646 in the Brentford County Court 23/10/2013 before District Judge Jenkins. The judge said that the contract was a commercial matter between PE and the landowner and didn’t create any contractual relationship with motorists who used the car park.

Sparsholt

4. SUMMARY
The driver/ owner and keeper/ resident were not informed about any permit scheme having only moved into the property on 27th February 2014. The flats are mainly let and residents change every 6 months. There are no signs or information on the noticeboard inside the block between the block entrance and the stairs/ lift which state that residents must display a permit and how to obtain one.

On receiving the penalty charge notice the Managing Agent was emailed to request he waive the PCN as the driver was parked in her own bay and therefore authorised. He declined to waive the PCN and suggested I email his contact at UK CPM, I did this and he also refused to waive the charge. The UK CPM website states that there is an option to waive any parking charge, just in case they inadvertently ticket a legitimate vehicle and therefore this PCN should have been waived immediately stopping the unnecessary stress and costs to myself of appealing. The purpose of appointing a Parking Management Company is to manage a car park to prevent others from parking in your space; it is not to harass genuine occupants parking in their own lease allotted spaces. The other blocks of flats in the road are all gated which stops unauthorised parking. The route that the Managing Agent has chosen and the fact that they would not waive the PCN or provide a copy of the contract with the landowners leads me to believe that money per ticket is being paid to the Managing Agent and it is an additional source of income, rather than benefitting the residents or owners.


On requesting a permit from the Managing Agent (another flat owner had agreed a swop in parking bay due to his tenants dropping items on my car from their balcony) on 28th March 2014, although the permit for Bay 1 shows it was issued in March, this was sent to the Managing Agent who did not send it on to me until I chased him in April 2014. When the permit arrived it was for the wrong bay as the Managing Agent had painted numbers for the bay that differed from those supplied to UK CPM and therefore the permit was reordered by the Managing Agent (he admitted he had made a mess of things). Again the permit took ages to arrive, with chasing it was finally received on 18th May 2014. The terms and conditions for parking in the car park where therefore not received until 18th May 2014, well after the PCN was issued and therefore the keeper and driver/owner were not subject to the terms and conditions prior to this date (or subsequently as they have not been agreed to by the owner of the bay). According to the BPA Code of Practice the permits should be issued promptly.


Section 22 of the BPA Code of Practice also states that an acknowledgement to a motorist’s appeal should be provided within 14 days with a full reply in writing within 35 days of receiving the appeal. UK CMP has blatantly disregarded this requirement. The PCN was issued 22nd March 2014; we went on a skiing holiday 23rd March 2014 and therefore completed the appeal letter on 3rd April 2014. I have proof of postage on 4th April 2014 and I did not get an acknowledgement letter at all, let alone within 14 days. The rejection letter from UK CPM is dated 15th July 2014 which is well outside the 35 days (100 days). I consider this a major breach of the BPA Code of Practice by UK CPM which should surely result in the PCN being invalidated – otherwise what is the point of the Code?


Indeed UK CPM is guilty of many material breaches of the BPA Code of Practice as demonstrated in the points above and there may be others evident when they present their evidence.


As UK CPM are so poor at following the BPA Code of Practice, I have little faith that they will provide me with the evidence pack at least 7 days before the appeal is heard, to give me time to comment on the evidence provided by UK CPM prior to the hearing. Therefore I would ask POPLA to provide me with a copy.


Please refer to the enclosures which form an integral part of this appeal:

• Copy of pages from Lease dated 20th December 2006 that relate to the parking bay.
• Copy of rejection letter dated 15th July 2014 from UK CPM.
• Copy of letter introducing clamping from 12th July 2010 (received 14th April 2014).
• Photos of entrance to car park, sign wording at back of car park and noticeboard.
• Copy of email correspondence regarding the parking bays and requesting waiving of PCN.
• Copy of page from UK CPM website stating option to waive any parking charge.
• Copy of permit for Bay 1 that I should not have received.
• Copy of permit for Bay 7 only received on 18th May 2014.

On the basis of all the points I have raised, this “charge” fails to meet the standards set out in section 19 of the BPA CoP and also fails to comply with basic contract law.


This concludes my appeal.

Dee140157

Wow this is long.
A summary should not be more than 1 paragraph!
Haven't read it yet, think I will have my dinner first.
Someone else might beat me to it then hopefully...

Guys_Dad

Dee140157 wrote: »

Wow this is long.
A summary should not be more than 1 paragraph!
Haven't read it yet, think I will have my dinner first.
Someone else might beat me to it then hopefully...

You have got time to have your supper and tomorrow's breakfast as well while someone reads this lot. Totally OTT and far too long. Unnecessary.

see a decent short appeal, endorsed by even c-m here

https://forums.moneysavingexpert.com/discussion/comment/63428430#Comment_63428430

Oh, and it won. :j

The_Deep

Mindboggling verbosity, it is his own space, even if he lost a Popla appeal, a judge would throw this out of court.

bazster

I've read shorter novels. It's an unenforceable fake parking fine, how can it possibly be worth all this hoo-ha? If you must ponce about with PoPLA rather than just telling them where to shove it, "it's not a GPEOL" was all you needed to say .