New parking regulations at home...

[Deleted User]

Yep. That ain't gonna fly. You had the notice for the purposes of the law.... Even if you never saw it.

Daniel_san

1st draft witness statement......I haven't spell checked,grammar checked etc and it no doubt still requires some "jigging" about. It also needs splitting up into Defence, and Counterclaim, although that's confusing me somewhat as many aspects are applicable to both. All feedback appreciated, thank you.

Particularly, Coupon Mad, if you happen across this, I'd love your input please, as you've been heavily involved in helping me with this from the start, which seems so long ago now....lol. Thank you.

In the xxxxx County Court
CLAIM NUMBER: EXXXX

Parking Control Management (UK) Limited [Claimant]
AND
Mr XX XXXX [DEFENDANT]

Witness statement of XXXX XXXX

I, XXXX XXXX XXXX, of XX XXXX XXXX, XXXX. XXXX, say as follows,

1. I am the registered keeper of the motor vehicle XXXX

2. I purchased a leasehold property, known as Plot XX, in the purpose build residential building named XXXX XXXX, in November 2007 and I have been living there since. With this plot, came a parking space, numbered !!!8220;XX!!!8221; in the residents car park, situated below the flats. The lease is for a period of 125 years.

3. Page 1 of my Lease states that the parties to the Lease are the Landowner, !!!8220;Bellway Homes!!!8221; !!!8211; later being XXXXX Limited; and myself, Mr XXXX XXXX XXXX. No other parties exist.

4. My lease contract makes no mention of any private parking company having authority over parking at the site XXXX XXXX. The lease has no requirement to display any parking permit. The lease does not outline any penalty or any sum of money that would become due in any way in relation to parking anywhere at the site XXXX XXXX.

5. My vehicle XXXX had been parked in an area in the corner of the secure, residents only car park, which is accessed by an electronic !!!8220;keyfob!!!8221; only available to genuine residents, regularly since 2007. Nobody has ever complained to me in any way about the vehicle being parked in this place.

6. On 31st March 2017 I received three Parking Charge Notices (PCN!!!8217;s), as three individually posted letters, dated 23rd, 24th and 28th March 2018, from Parking Control Management (UK) each requesting the sum of £100 for an alleged breach of contract, in relation to my vehicle XXXX. My vehicle XXXX had not moved from its current place for between one and two months, and so was already parked well before this enforcement commenced. A 4th PCN arrived a few days later, dated 31st March. It is wholly unreasonable to issue and require a payment, for four parking charges, issued within the time frame of one week, to a vehicle which has been parked in a place for several months prior, without moving, and indeed had been parked in the same place regularly for almost ten years.

7. In early April, on discussion with another resident, I became aware that other residents had been in receipt of a letter, which provided information that a new parking scheme was in place, along with a commencement date of 22nd March 2017. I am told a permit was also provided to other residents with this letter. I had not been in receipt of neither the letter, nor any parking permit. At this time I assumed I was deliberately and purposely not provided with either, due to the fact that I had an exemption from the parking schemes that had operated in 2014-2016 and that this was ongoing. I refer the court to the attached email copy which clearly states my ongoing exemption from the scheme !!!8220;XXXX XXXX!!!8221;.

8. The Claimant states that the above mentioned letter and parking permit were hand delivered? When, and by whom, exactly please? The residents letter boxes reside in the foyer of the building, which is only accessible by a !!!8220;fob!!!8221;, only available to residents. A more plausible explanation would be that the Claimant delivered letters and permits to the management company, who then delivered them to residents, and with full knowledge of my exemption to such schemes, decided not to deliver to my letter box. This makes more sense. Additionally, I have previously been the victim of impersonation, with the contents of my letter box having been stolen over several days, resulting in a bank account being opened in my name and several loans being approved.

9.1 The Claimant states that Clause 5.4 of my Lease (page 10) allows the !!!8220;Landlord / Management Company!!!8221; to bring in parking regulations. This clause is very clear, that the !!!8220;Lessor!!!8221;, that is, the Land Owner, or Landlord, who is XXXXX Limited, is the person who can make such amendments. It does not state that such powers extend to a Management Company or any other third party.
9.2 The Lessor may not make conditions worse for the owner of the lease as this would be a derogation of grant. Charging a penalty for not displaying a permit would make conditions worse for me as a resident, and for all residents.
9.3 A change in regulations that would bind a Leaseholder for the remaining period of the lease, would certainly require a change to the lease, not a letter from a Third Party or signs erected in the car park.

10. The Claimant states (on page 5 of their Witness Statement, !!!8220;20!!!8221;) that !!!8220;the Claimant grants a license to all; this license allows anyone permission to be on the land!!!8221;. This is absolutely not true, as the land, (the car park), is accessed only by an electronic keyfob, which opens the security gate to allow persons or vehicles access. The Lease contract sets out the conditions of use for residents and their invited guests. There is no suggestion that !!!8220;anyone!!!8221; has permission to be on the land.

11. The Claimant has attempted to override my lease terms, essentially re-offering parking under worse terms than I agreed when signing my lease contract. In fact, the Claimant is saying that if I do not agree with their terms, I essentially lose my right to park in my own parking space, which is outlined in Red on my lease, and forms part of my property. My lease provides me with the terms of parking, outlined on page 19 of my lease,
!!!8220;Use of Parking Space. 27: Not to use the Parking Space!!!8221;
clause 27.1.1 except for parking a private motor car or motor cycle or commercial vehicle not exceeding 1.5 tonnes which is taxed and in a roadworthy condition and
clause 27.1.2 for the carrying out of any repairs to any motor vehicle for the time being parked in or on the Parking Space other than minor repairs which can be carried out without causing any noise or nuisance and
clause 27.1.3. for the storage of any or other inflammable material (except for petrol and oil in the tanks of a motor vehicle parked thereon)

None of these terms require a permit to be displayed, nor do they suggest any monetary penalty will become due for breach of them.

12. I refer the court to Pace v Mr N [2016] C6GF14F0 [2016], where District Judge Coonan dismissed the claim and refused leave to appeal.

!!!8220;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 !!!8220;on condition that you display a permit!!!8221;. 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.!!!8221;

13. I refer the court to Link Parking LTD V Jayne Gaynor Parkinson [2016] C7GF50J7 [2016], where DEPUTY DISTRICT JUDGE METCALF concluded:
9. There is nothing to suggest that Mrs Parkinson has breached this covenant. More particularly there is nothing in the covenant that requires her to display a valid parking permit. Thus, it seems to me that pursuant to the lease, all that the defendant was obliged to do was park in her own space and ensure that the vehicle was road-worthy and appropriately taxed.
10. The question is, therefore, whether Isis by engaging Link Parking have in effect varied the original lease, or whether they are entitled to impose parking restrictions pursuant to [inaudible] 2, section 21 on page 13 of the agreement.
11. 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 applies 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 judgment, suffice in this regard.
12. Moreover, I have real concerns as to whether this space, and the management of this particular space, falls within their ambit as a management company. Their obligations are laid out in the fourth schedule and it seems clear, from the fifth and sixth schedule that their obligations related to the common parts of the property. This parking space does not fall within the common parts of the property; it is the property of Mrs Parkinson, and on that basis I cannot see how the management company can interfere with her enjoyment of it, or charge her for its usage via a parking penalty or otherwise. It seems to me that to do so would have required a variation of the original lease and I have not seen such a variation.
13. I have also considered the reported case relied upon by Mrs Parkinson, which was Pace Recovery v Mr N [2016] C6GF14F0. It is not factually identical to this case, and does not in any event bind me. However the case raised similar issues, and the Judge in that case found that the parking company could not amend the terms of the tenancy agreement to bind a tenant, but rather that it would have to be the other party to the contract, and it seems to me that the same principle applies here. It is Isis (or Home from Home) who ought to have sought to amend the lease, and I have seen no evidence that they have done so.

Daniel_san

14.1 The contract which the Claimant claims allows them to carry out a parking enforcement on the site is incomplete; it fails to state the role of the other party entering into it. It has four options, so should not be difficult to have been completed.
14.2 The contract is a contract to enforce parking; it does not state how this should be done, nor does it require or compel the Claimant to run a permit scheme. The claimant has elected to run a permit parking scheme for their own benefit. They could have obtained a list of approved registrations from owners; "a white list.". Had they done so, no charges would have been made against me parking in my own space and the counterclaim would not exist.
14.3. The contract requires the Claimant to operate to the IPC / AOS code of practice. The Claimant has failed to do this, I refer the court to PART B of the IPC Code of Practice !!!8211; Establishing Yourself as the !!!8216;Creditor!!!8217; states clearly:
!!!8220;1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the !!!8216;Creditor!!!8217; within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner!!!8217;s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions!!!8221;.
This clearly requires a contract with the land owner. The management company are not the land owner, therefore this contract is not valid for the purpose of allowing the Claimant to enforce parking on the land.

14.4 The contract states that: (3) the Claimant has !!!8220;authority to proceed with legal action to recover unpaid charges for unauthorised parking on the land specified!!!8221;. As a resident, my lease grants me the authority to park in the car park and sets out the specific terms of this. If I park a vehicle outside of my own space, and this is not authorised by the lease, then that would be a tort of trespass, for which only the land owner could take action, and certainly not a third party such as a parking company. In fact, Clause 9, on page 12 of the lease confirms this !!!8220;A person (a !!!8220;Third Party!!!8221;) who is not either a party to this Lease or a successor in title is a party to this Lease has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Lease notwithstanding that any such term may purport to confer or may be construed as conferring a benefit on such Third Party PROVIDED THAT this does not affect any right or remedy of such Third Party which exists or is available apart from that Act.

15. I received a further PCN to my vehicle parked in my own space, which is my property, as outlined in Red on my plans, dated 7th April 2017.

16. Following this !!!8220;own space!!!8221; PCN, dated 7th April 2017, on 26th April 2017 I emailed a formal complaint to the Management Company (I refer the court to a copy attached); and also copied the relevant parts in a letter to the Claimant (copy attached). I received no response.

17. I received further PCN!!!8217;s for my vehicle parked in my own space, dated 16th June 2017 and 17th June 2017. At this point I realised that there was no point in entering into correspondence with the claimant. I ignored further correspondence from the Claimant and !!!8220;Trace Debt Recovery UK Limited!!!8221; who the Claimant passed the alleged debt to.

18. I received further PCN!!!8217;s for my vehicle parked in my own space, dated 19th, 24th, 28th February and 4th March 2018.

19. In June 2018, I received four !!!8220;PLEASE DO NOT IGNORE. DEMAND FOR OUTSTANDING PAYMENT!!!8221; letters from !!!8220;Trace Debt Recovery UK Limited!!!8221;, dated 31st May, and 6th, 12th and 12th June. The Claimant had provided this company with my personal data and instructed them to pursue the alleged debt, with full knowledge that the four PCN!!!8217;s in question, plus an additional Three, formed my counterclaim.

20. !!!8220;Trace Debt Recovery UK Limited!!!8221; sent additional, !!!8220;PLEASE DO NOT IGNORE THIS FINAL DEMAND FOR OUTSTANDING PAYMENT!!!8221;, letters dated 21st June, and the 5th, 5th and 12th July.

21. At the end of July 2018, I received a letter from !!!8220;TRACE LEGAL DEPARTMENT!!!8221;. It states that their client, the Claimant in this matter, has now instructed them to !!!8220;assess and prepare your case to take potential legal action against you in the County Court!!!8221;. It is clear that the Claimant has no regard for the Court Process and prefers to deal with matters by harassment and intimidation, which is unreasonable and very distressing.

22. The Claimant has suggested that !!!8220;it is possible the Defendant was not parked in his bay whatsoever!!!8221;. This is rejected. In fact, the Claimant themselves have the photographic !!!8220;evidence!!!8221; available online for me to view, download, print, and I duly enclose these as evidence my vehicle was parked within the confines of my own space, on all Seven occasions to support my counterclaim.

STATEMENT of TRUTH
I believe that the facts stated in this Witness Statement are true
Dated the 6th August 2018

Daniel_san

Sorry for all the 8216,8217 etc stuff....even pasting as plain text isn't getting rid of it!

Le_Kirk

Daniel_san wrote: »

Sorry for all the 8216,8217 etc stuff....even pasting as plain text isn't getting rid of it!

Do you have Smart Punctuation turned on on whatever device you are using to post? Search this forum for Smart Punctuation and you will how to turn it off.

Umkomaas

Do you have Smart Punctuation turned on on whatever device you are using to post? Search this forum for Smart Punctuation and you will how to turn it off.

Switching off your 'Smart Punctuation' on your iPhone/iPad will avoid those !!!!8820; and the like, as every apostrophe and some other punctuations convert to exclamation marks and numbers.

It will remove anything similar from any future posts you make, but unfortunately copy and pastes of other people's inputs will still carry the fault and will need to be tidied manually.

Go to 'Settings' > 'General' > 'Keyboard' > 'Smart Punctuation' and flick the switch off.

Switching off seems to have no detrimental affect on any other use of the keyboard.

Daniel_san

I've turned it off on my iPhoneX but wasn't aware MS Word had smart punctuation. Even copy / paste as plain text didn't work.

Daniel_san

Sorry....little bump for attention.....looking to get this finalised and posted end of this week. Thank you

Lego-9

Are there any updates since August DSan?

Daniel_san

In court in the next few days....