Company car in own spot

Dee140157

[url]Http://s13.postimg.org/e96riholj/IMG_0170.jpg[/url]
[url]Http://s13.postimg.org/eur50uu9z/IMG_0171.jpg[/url]
[url]Http://s13.postimg.org/xprh50jpj/IMG_0172.jpg[/url]
[url]Http://s15.postimg.org/pyakk3r97/Windscreen_Notice.jpg[/url]
[url]Http://s15.postimg.org/mc4r7gkvv/Windscreen_Leaflet01.jpg[/url]
[url]Http://s15.postimg.org/4nd0fu94r/Windscreen_Leaflet02.jpg[/url]

bazster

That entrance sign is a beauty. It instructs permit holders to "see notices in car park", and that's it! Non-permit holders, it seems, can do as they please.

As for the other signs, what's a "bay/space"? Seems to me that, according to plain English, "space" is anywhere that doesn't already have something else in it! And what constitutes "correctly"?

And what's the card payment charge? Is it £1.75, or £5.00?

The_Slithy_Tove

I'd go for #2 alone - they have no contract with YOU, the effective owner of the land (by way of your lease), and are trespassers at best.


And have you instructed them, via the management company, to butt out and keep off your land/property. Unless you take a robust approach, they will carry on, and you'll have no one to blame but yourself.

Dee140157

Since it is a Contractual Breach Charge you have correctly summised that they can only sue for actual damages therefore must put forward a GPEOL.

The only annoying thing I can see in the windscreen ticket as we know it is unlikely to be obfuscation is that you can appeal on mitigating circumstances. Yes you can appeal on them, but they never cancel them because of them! However sadly probably not an appeal point.


However I would still add into the landowner part information from point 1 of your original appeal.

Oh and p.s.

Afternoon chaps.

, some of us are "chapesses"

bazster

The ticket is not POFA-compliant. It doesn't identify the creditor, and it doesn't specify the period of parking. "Ethical" Parking may not think that the period of parking is particularly relevant where a permit is not displayed but the law begs to differ: the period of parking is not optional.

The_Deep

The OP is the partner of the tenant, the tenant been granted "quiet enjoyment" by the landlord, yet no mention has been made to the landlord's take on this.

Was the Landlord aware of the presence of a PPC on the site, if so, did he/she agree to it? Has the management company been contacted? If so what is their position?

4stars

Many thanks for all of you comments. Much appreciated.

I'll update my POPLA appeal in due course covering 'no grace period' and 'fail to identify the creditor'.

The_Deep wrote: »

The OP is the partner of the tenant, the tenant been granted "quiet enjoyment" by the landlord, yet no mention has been made to the landlord's take on this.

Was the Landlord aware of the presence of a PPC on the site, if so, did he/she agree to it? Has the management company been contacted? If so what is their position?

The Deep, I'll send you a PM.

The_Deep

Reply sent.

4stars

update #4

Latest version of my POPLA appeal. I would be grateful if somebody can advice if it needs some final tweaks.


POPLA Reference Number:
Vehicle Reg.:
PPC: Ethical Parking Management
PCN Ref:
Date of PCN:

Dear POPLA,

I am appealing as keeper of the vehicle at the time against the parking charge on the following grounds:

1) 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.

Ethical Parking Management 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. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

Neither is this charge 'commercially justified'. In answer to that proposition from a PPC about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis) POPLA Assessor Chris Adamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle 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 reasonably 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.

2) Lack of standing/authority from landowner

Ethical Parking 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.

BPA CoP paragraphs 7.1 &7.2 dictate some of the required contract wording. I put Ethical Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Ethical Parking 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. They do not own this area and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Ethical Parking are entitled to pursue these charges in their own right.

I require Ethical Parking 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 on this road. In order to refute this it will not be sufficient for the Operator 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.

3) Grace period not in accordance with BPA CoP

The BPA code of practice states that: “You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”

The windscreen notice does fail to identify any observation time. Instead N/A was entered by the operator.

4) Non-compliant Notice to Driver

The Notice to Driver by Ethical Parking is not compliant with paragraph 7 (2)(e) of schedule 4 of the Protection of Freedom Act 2012 in that it does not identify the creditor. The Operator is required to specifically "identify" the creditor, which requires words to the effect of "The creditor is ..... ".

The keeper is entitled to know the party with whom any purported contract was made. Ethical Parking has failed to do this and therefore has not fulfilled all the requirements necessary under POFA to allow it to attempt recovery of any charge from the keeper.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

Dee140157

See Bazter post 16. Not does the NTK specify the amount of time the car was parked for. Or something along that lines. Find the relevant POFA 12 words to go with that sentence as you did the other point.

I would also expect to see a paragraph going to town on the signage .