PCN in own parking bay

Guys_Dad

The_Deep wrote: »

You will have noticed that I rarely give advice to sinners on how to beat PCNs. This is because I am constantly having my own spaces abused by such behaviour, I can well understand why a management company should wish to protect its clients from parking abusers.

I understand that point. But why do the Management companies and PPCs not have a decent system for filtering out the bad guys from the forgetful legitimate people who have forgotten to put their pass on display?

They have the right to park, albeit with conditions, whereas the bad guys have none. So, why should the penalty be the same? And I mean penalty.

Coupon-mad

It would be so easy for a PPC to have a white list of the Residents cars and no need for any permits, just as retail car parks have a white list of staff cars. A white list would be easily kept and would mitigate any loss - but then they wouldn't make as much money from that.

The_Deep

But why do the Management companies and PPCs not have a decent system for filtering out the bad guys from the forgetful legitimate people who have forgotten to put their pass on display?

Because they are in on the scam, because they are seduced by the seductive sales pitch of a shiny suited salesmen in a BMW 5 Series, because they have an interest in the PPC?

I own two properties in a block managed by an excellent small management company. At last years AGM we discussed the parking problems we were having, mainly caused by the residents themselves, many of whom are on HB.

The MA and some of the shareholders wanted to introduce a PPC, I fought long and hard against it, so far I have prevailed, but if I am not able to attend the next AGM it could well happen.

PCNAUG14

Thanks all for your comments above.

I have revised my POPLA appeal below. Am I missing anything now?:

Dear POPLA,
I am the registered keeper & this is my appeal:

I have received two Parking Charge Notices on xx August 2014 whilst parked in my own allocated parking bay. The parking permit which I have been given had slipped from the dashboard so was not visible in the windscreen at the time. I appealed the charge on xx August 2014 but this was rejected and the POPLA verification code of xxxxxxx was given with regard to both tickets.

I am appealing the charges on the following grounds:

1) The Charges are not a genuine pre-estimate of loss
There is no loss flowing from this parking event because I was parked in my own designated space.
This Operator 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 demand for a payment of £100 as noted within the Parking Charge is a punitive amount that has no relationship to the loss that would have been suffered by the Landowner. The BPA code of practice states:

19.5 - If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.
19.6 If the parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.

I require CPP to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses.

2) My lease states I have the right to park in my designated space as marked on a plan. There is no mention of permits, or rights to impose additional conditions.
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 or 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. OPC 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 OPC to strict proof of the contract terms with the actual landowner (not a lessee or agent). OPC 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 car park 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 OPC are entitled to pursue these charges in their own right.
I require OPC to provide a full copy of the signed & dated 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 the alleged contravention in this car park. 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)Inadequate Signage
There are no visible signs placed between my allocated parking space and the entrance to my flat. The BPA code of practice February 2014 clearly 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".

Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. There is a lack of entrance signage and the car park generally is not fully covered by signage at all bays.
I assert that being unable to read the detail on the sign visible on entry without stopping your vehicle and impeding the flow of traffic behind you and having no visible signs between my space and flat, breaches this code.

I therefore require that the Operator submit evidence of the "clear and prominent signage throughout the development" in the form of site maps and photographs clearly indicating the location and height of said signage at the time of the alleged breach.

I contend it is wholly unreasonable charging a disproportionate sum where no loss has been caused by a car in a free car park in an allocated space. I put this Operator to strict proof to justify that their charge, under the circumstances described to justify that the charge does not breach the UTCCRs and UCT Act.

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

Coupon-mad

You had 'CPP' here by accident and I would add a lot more to the 'no GPEOL' appeal point:


I require OPC to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses.

Nor is the charge 'commercially justified'. If OPC cites 'ParkingEye v Beavis & Wardley' it is irrelevant. Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his novel decision about these penalties; a decision which was full of caveats and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014: ''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...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...nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

I fully expect OPC might send POPLA the latest generic 'BPA-trained' statement showing duplicated layers of staff time, including unnecessary checks and balances. It will no doubt follow the now rather well-trodden path of trotting out the unsubstantiated and incredible assertion that around three hours of Management time 'double checking' the work of others, goes into each and every PCN (whether appealed or not). Where a large percentage of the 'GPEOL calculation' comprises staff costs, they must be able to justify those heads as relating to a typical PCN. And yet only 2% of PCNs get to POPLA stage, so clearly even if a Manager did waste half a day double checking those rare cases which go to POPLA, only 2% of those man-hours could be applied in advance as a GPEOL. Their calculation cannot, in the interests of good faith and open dealings with consumers, include the entire count of man-hours allegedly spent on the odd rare case appealed to POPLA because those extravagant layers of staff costs cannot be in the reasonable contemplation of the Operator at the time of issuing a PCN.

A generic 'model loss statement' cannot possibly show any regard to calculating before the event, a genuine pre-estimate of the likely loss which might typically flow from a parking event. I contend OPC's calculation (if ex-clampers can add up) is merely a conveniently-totalled sum of actual loss suffered, made afterwards, rather than a genuine pre-estimate of loss. Earlier this year and during the whole of the 2 years since POPLA started, OPC have used a completely different template of a shoddy 'GPEOL calculation' as evidence. So, a shiny 'new version' written this Summer after a spot of BPA training, cannot replace the well-documented (and known to POPLA) old version purely to try to win POPLA appeals. A new version is not genuinely based on any advance calculation made when meeting with the landowner to set the charges for this contravention before OPC started to charge and operate at this car park.

As such, POPLA should I hope, see through it just as Ricky Powell did in 6861754004 (re PPS, the originators of the generic calculation OPC and others might now use):
''I find that the ‘appeal writing’ loss asserted is duplicated in two heads of loss. The ‘Appeals staff’ appeals writing costs are included in the sum for £9.51. However, there are further appeal writing costs included in the ‘Management’ costs, which total £71.65. It has not been explained how the individual heads of loss included under the heading ‘Management’ are calculated. It is also impossible to determine what contribution the appeal writing costs contribute to the total of £71.65. Therefore, I cannot find that the total costs for ‘Management’ are substantiated and so must disregard them from the total genuine pre-estimate of loss...I find that the parking charge is not enforceable in this case. '' (Ricky Powell, Assessor, August 2014).

I contend that OPC's calculation (even if it is a more credible effort than those recently presented) must fail as it has been re-written recently and is not a genuine PRE-estimate. In fact it would be a 'post-estimate' after the event, of figures designed to match the charge. As such, any re-write by OPC would be disingenuous and not acceptable, according to the words of POPLA Lead Adjudicator, Mr Greenslade: “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

I put OPC to strict proof of the date when the GPEOL was discussed and decided for this contravention at this site. This must include documentary evidence of a meeting with their clients (landowner/occupier) and/or contemporaneous notes or emails or other evidence which shows how/when this PCN sum was decided in advance, detailing genuinely likely losses caused by this alleged contravention. One would expect discussion to have occurred to ensure that genuine permit-holders like myself were not penalised, or at least that a lower level of charge should apply if a resident proves they have a permit, compared to a non-resident parking and taking up a bay without authority. I require that evidence of a GPEOL meeting/discussions in advance where the losses caused by each 'contravention' were specified.



Also I would add 'failure to mitigate loss' as an extra appeal point #2 (move the rest down):


No attempt to mitigate loss

OPC has failed to act reasonably and to mitigate loss, instead they are profiting from their own imposed permit scheme which triggers a PCN for genuine residents like myself if a permit simply slips out of view on the dashboard. Yet there is no justification for using this cumbersome business model. It is not reasonable to put the onus on residents to prove a right to park with a 'permit' seeing as the ticketing employee could simply refer to a white list of exempt vehicles instead. This would avoid errors and situations where genuine residents are penalised.

I contend that the charge is not a 'necessary cost' at all; it is wholly unreasonable because:

(a) - OPC could and should have taken reasonable steps to avoid this amount of 'loss'

(b) - it would have been reasonable for OPC to have taken other steps instead

(c) - the 'loss' would have been reduced to zero, had they taken those steps.

To explain these points:

(a) OPC could and should have taken reasonable steps to avoid this amount of 'loss'.
An Operator has a duty to mitigate any loss caused from alleged breaches. This duty in common law, requires reasonable steps to be taken to limit the losses that are incurred and to avoid incurring unnecessary expenditure seeking to remedy the breach. An Operator cannot simply 'sit on its hands' watching small losses accumulate with the intention of recovering them in full from the public using the most expensive, time consuming and unnecessary route to remedy the breach. Nor can an Operator continue to allow small losses to accumulate which are, even in part, caused by a failure of their own system. An Operator should not be 'compensated' by a motorist for a loss that is not really caused by the breach itself, but is in fact caused by the Operator's own failure to implement a system which would immediately avoid issuing extortionate PCNs to genuine residents, week in, week out.

(b) it would have been reasonable for OPC to have taken other steps instead.
As there is an attendant on site, it would not be unreasonable for that employee to retain control of a list of cars which are permitted to park. This would be a perfectly reasonable step to avoid errors and to mitigate loss for all parties and such a list could be a simple list in a notebook or an electronic list, updated in real time and be displayed on the hand-held device the employee already uses. Rather than putting the onus on each resident to display a permit - which is not even provided with a wallet or sticky holder or clip to ensure it stays in place - OPC could simply have a white list of exempt cars.

This is the case in many retail parks where Operators keep a 'white list' of staff cars to avoid ticketing them unfairly, since their drivers are authorised to be there. The same is true of residents' car parks - residents have the right to use their designated bay unharassed. It is negligent and disingenuous of OPC not to attempt to mitigate any loss for themselves and the residents.

(c) - the loss would have been reduced to zero, had they taken those steps.
If OPC kept a simple white list, then the 'loss' would have been immediately avoided. No PCN need ever have been issued and no photos taken, no-one's time would have been wasted and the residents interests as consumers would have been prioritised in good faith. The Operator's Managers would not have had to spend a typical BPA-coached '3 hours' of their precious time at £20+ per hour on this appeal - if indeed they bother - and everyone including the residents would be happy. Instead, we have a bad faith operation where OPC increase their own profits by issuing flimsy permits then applying a punitive remedy for every 'breach' with an extravagant PCN issued to residents and trespassers alike.

A failure to mitigate loss is a failure in law and so it renders the inflated sum to be unrecoverable. I put OPC to strict proof to the contrary to disprove (a), (b) and (c) above and to explain why they allow losses to accumulate, all pursued in the same unreasonable and expensive manner, from motorists who could easily have their vehicles registered just once on a white list.

PCNAUG14

Thank you again CM. This is great. I'll add these bits to my appeal and get this off to POPLA today.

The_Deep

I just do not understand why you are going along with all this nonsense OP. Perhaps you could write a few lines about why you would prefer to jump through all of these hoops rather that tell this totally discredited company where to stick their PCN.

Have you read this

https://forums.moneysavingexpert.com/discussion/4939352=

PCNAUG14

POPLA response received today. Appeal allowed and based solely on no GPEOL. Thanks all for your help.

Coupon-mad

Well done - please do add it to POPLA Decisions at the top of the forum!