Secure-A-Space, 5 PCN's in 17 days in allocated parking space.

BiscuitMuncher

With having 5 PCN's to take to PoPLA appeal all relating to the same issue i.e. "parking without a valid permit" in my own space is it permissible to refer to the previous appeals?

Umkomaas

BiscuitMuncher wrote: »

With having 5 PCN's to take to PoPLA appeal all relating to the same issue i.e. "parking without a valid permit" in my own space is it permissible to refer to the previous appeals?

I don't think so, certainly under old POPLA that was never seen. In fact, it's not in your interest to link them, because if the first one 'bombs', they're all potentially going down the pan.

If there's a reasonable amount of time between each, your first appeal will be a tracer shot, if it's upheld then it's simply a copy and paste job (there's nothing that bars this) - just change the verification code number and other unique identifiers for each subsequent appeal.

If the first appeal fails, it gives you the opportunity to adjust the next and so on.

BiscuitMuncher

Dear All, hope everyone had a Merry Christmas.

Please find below my initial draft appeal to PoPLA. Critique most welcome. Thanks in advance.

Dear Sir,

re:PoPLA case verification code xxxxxxxxx

This appeal is written on behalf of the registered keeper of the the vehicle in question and states that Secure-A-Space Ltd. has no right to charge a resident for not displaying a valid permit in their own assigned parking bay. Therefore, PoPLA should accept this appeal and cancel the Parking Charge claimed by Secure-A-Space Ltd.

Below is the background information and main points of appeal for your consideration in this matter.

The registered keeper received an unsolicited invoice from Secure-A-Space Ltd. requiring payment of a charge for the alleged transgression of parking without displaying a valid permit. However, this charge was not agreed to by the driver. The vehicle was authorised, as are all residents vehicles there, because it is a secure gated car park and the permit scheme is simply a revenue raiser for Secure-A-Space Ltd. and the Management Company who allow them to operate the car park for no charge.

The only victims of these charges are legitimate residents and their visitors. This is an unsolicited charge and an unfair business practice where Secure-A-Space Ltd. have made no attempt to mitigate any loss allowing for the fact that a only a resident could park in his/her own space or by simply keeping a white list of exempt cars correlated to apartment numbers or tenants/residents rather than having this punitive system set to catch drivers out for the most minor of infractions. No doubt PoPLA is aware that the EU are proceeding with a robust Consumer Rights Directive and this sort of hidden charge is not recoverable in law.

The parking area is in a low level, two storey car park building within a gated compound and is for residents use only. Access and egress to the parking area is by the main compound electric gates which are operated by a radio controlled key fob. Such a key fob was supplied together with the Building main entrance key, the apartment key and the mailbox key when the tenancy commenced.

The vehicle was parked correctly within the marked parking bay which is reserved for the sole use of the registered keeper’s apartment of which he is a co-signatory on the Tenancy Agreement together with the author of this appeal.

Please refer to photos nos. 1 & 2 showing the parking bay with the resident’s apartment number affixed to the concrete wall at the rear of the parking bay. As a tenant enters the parking bay this is the first and most clear sign that he/she would see. No mention of a permit being required is shown on this sign.

The registered keeper found the Parking Charge Notice affixed to the vehicle windscreen in an official looking yellow, plastic wallet (Please refer to photo no. 3).
In addition to the title of the contents, Parking Charge Notice, also written on the wallet was “Warning - Unauthorised persons must not remove or interfere with this ticket” in bold, capital letters. It is unclear from the warning who an authorised person is and who must give the authorisation.

However, the registered keeper took this to be either a Police or Local Authority road traffic offence notice because it was not comprehensible why any other kind of ticket should be on a vehicle parked in its designated parking bay.

The registered keeper was extremely aggrieved and upset to find that the Parking Charge Notice demanded a fee of £100 even though nothing unlawful had been done. The reason for the charge shown on the Parking Charge Notice was “Failure to display a valid permit”.

I submit the points below to demonstrate the registered keeper is not liable for the Parking Charge Notice and that a permit is not required to park in one’s own parking space within a gated, secure parking area:

1. Vehicle belongs to a genuine resident with full rights to park in allocated parking space.

2. Signage within the parking area is misleading and ambiguous.

3. No genuine pre-estimate of loss.

4. No standing or authority to pursue charges nor form contracts with motorists.

5. No contract between resident and Secure-A-Space Ltd.

6. Failure to comply with the Consumer Contracts(Information, Cancellation and Additional Payments) Regulations 2013



1. Vehicle belongs to a genuine resident with full rights to park in allocated parking space without the need of a permit.

As per the Tenancy Agreement signed and agreed to in September 2015, there is no mention of Secure-A-Space Ltd., or any other parking company or third party to manage the car park in question. There is also no mention of the need to display a permit to park in the space provided with the property. The vehicle was parked while observing the requirements of the Tenancy Agreement, therefore, there can be no contract requirement to display a permit by Secure-A-Space Ltd.

Clause 15 of the Tenancy Agreement states:

15. Cars and Parking

15.1!!!! To park a private vehicle only at the Premises.

15.2!!!! To park in the car parking space, garage or driveway allocated to the Premises, if applicable.

15.3 To keep any garage, driveway or parking space free of oil and to pay for the removal and cleaning of any spillage caused
by a vehicle of the Tenant, his family, contractors or visitors.

15.4 To remove all vehicles belonging to the tenant, his family or visitors at the end of the Tenancy.

15.5 Not to park any vehicle at the Premises that is not in road worthy condition and fully taxed.

A full copy of the Tenancy Agreement can be supplied to PoPLA upon request.

The Tenancy Agreement makes no mention of the need for a parking permit being required or the need for a parking permit to be displayed.

No mention was made of a parking permit being required or the need for a parking permit to be displayed by the letting agent or in any welcome pack literature and the appellant did not have sight of any Management Company terms and conditions when the tenancy started.

The Management Company concierge never made it known that a parking permit was required or the need for a parking permit to be displayed until after receipt of the Parking Charge Notice when asked by the registered keeper.

The Landlord stated in an email dated 30/11/15 “There is a parking space for the flat which you should be able to use for free.”

The reason landowners employ parking companies is to stop non-residents abusing the car park in question, that is, to prevent unauthorised parking.
Genuine residents should not be deterred from using the parking spaces provided to their properties. However, in this case where the compound is gated and only accessible with a key fob the need for a parking company is totally redundant as all residents have their own numbered spaces.

2. Signage within the parking area is misleading and ambiguous.

The Secure-A-Space Ltd. signs in various locations around the parking compound are misleading in that they have the wording “Contractual Agreement You are Parking in a 24 Hour Protected Parking Zone” in large prominent white lettering on a blue background which is easily readable from a distance and this gives the impression that the parking area or zone is constantly patrolled and monitored 24 hours per day for the protection of the residents vehicles and to stop any theft or vandalism occurring, and an air of authority reflecting the company’s name, Secure-A-Space. This is how the registered keeper interpreted the sign. However, this is not true, an attendant who is not site based visits the compound numerous times per week only to check that permits are displayed and to issue so called Penalty Charge Notices if they are not.

In the rejection of appeal letter from Secure-A-Space Ltd. they state that “the vehicle parked without a valid permit in extremely close proximity to one of the numerous contractural agreement signs”. This is not true, the vehicle is 4.2 metres away from the nearest sign.

The sign is 600mm x 400mm, and the main “Contractual Agreement You are Parking in a 24 Hour Protected Parking Zone” is 56mm high. The blue lettering on a yellow background below the main warning is in two smaller sizes of fonts (17mm and 7mm high or 70% & 87.5% smaller respectively than the main warning font)

The smallest font is difficult to read from the location of the registered keeper’s parking bay. Only upon close inspection is the sign fully legible.

The £100 charge and, more importantly in this case, the requirement to display a permit are not sufficiently prominent on the signage. In the case of (Parking Eye v Beavis [2015] UKSC 67) Lord Neuberger stated “The charge is prominently displayed in large letters….. they could not have been made briefer, simpler or more prominently proclaimed”.
Lord Hodge stated “ motorists entering the car park were given ample warning of both the time limit and the amount of the charge….”

Unreadable signage breaches Appendix B of the British Parking Association’s (BPA) Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

The registered keeper found the Parking Charge Notice affixed to the vehicle windscreen in an official looking yellow, plastic wallet (Please refer to photo no. 2) but this was not addressed to either the registered keeper nor the driver of the vehicle.
!
In addition to the title of the contents, Parking Charge Notice, also written on the wallet was “Warning - Unauthorised persons must not remove or interfere with this ticket”. The registered keeper was neither authorised by, nor had received authorisation from, Secure-Space-Ltd. to remove their property but had to in order to comply with the Highway Code Section 6 “ Windscreens must be kept free from obstructions at all times”. Secure-A-Space Ltd.’s actions of placing a Parking Charge Notice on the windscreen would have led to the registered keeper contravening these regulations.

3. No genuine pre-estimate of loss.

The charge of £100 is punitive and unreasonable, contravening the BPA Code of Practice section 19. Secure-A-Space Ltd. must, therefore, be required to explain their 'charge' by providing PoPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so Secure-A-Space Ltd. have no cause of action to pursue this charge. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge “cannot be punitive or unreasonable”.

Secure-A-Space Ltd. cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe Secure A Space are likely to be paid by their client, xxxxxxx Property Management - so any such payment income must be balanced within the breakdown Secure-A-Space Ltd. supply and must be shown in the contract, which leads me to appeal point 5 below.

The Department for Transport guidelines state:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."

In addition the Office of Fair Trading information to the BPA about parking charges states that these are not automatically recoverable: ''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.”

If all of the ‘resident only’ spaces were occupied by valid residents, regardless of whether permits were displayed, Secure-A-Space Ltd. would still have incurred zero loss. When empty, these resident spaces cannot be re-offered in exchange for fees to those who have no association with the buildings, making the charges punitive.

As not all tenants in the 10 storey apartment block own motor cars the parking area is usually approximately 70% occupied.

4. No standing or authority to pursue charges nor form contracts with motorists.

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with motorists or tenants in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Secure-A-Space Ltd. must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.

Therefore, Secure-A-Space Ltd. should provide strict proof to PoPLA and the appellant with an un-redacted, contemporaneous copy of the contract between Secure-A-Space Ltd. and the landowner, not just another agent, management company or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Secure-A-Space Ltd.

5. No contract between resident and Secure-A-Space Ltd.

As per the Tenancy Agreement signed and agreed to in September 2015, there is no mention of Secure-A-Space Ltd., or any other parking company or third party to manage the car park in question. There is no mention of requiring to display a permit to park in the space provided with the property. As per appeal point 1 above, the vehicle was parked while observing the requirements of the property tenancy Agreement, therefore, there is no contract between the keeper and Secure-A-Space Ltd.

The Tenancy Agreement signed between the Landlord and the Tenant did not warn of any parking charges nor drew attention to any further terms which could apply to the contract at the time the tenancy commenced. It is too late to bring other terms into a contract (not even those on a sign) if these terms were not part of the agreement made. They were not. The tenants were not made aware that a Parking Charge or ’fine' of £100 could possibly be levied for any supposed breach of any parking rules.

6. Failure to comply with the Consumer Contracts(Information, Cancellation and Additional Payments) Regulations 2013

http://www.legislation.gov.uk/uksi/2013/3134/pdfs/uksi_20133134_en.pdf

These Regulations apply to all UK consumer contracts from June 2014. This is a service contract* offered by written terms in print on a sign which is a means of distance communication (i.e. not a face-to-face contract in the simultaneous physical presence of the trader and the consumer).
In the UK Regulations:
* “service contract” means a contract, other than a sales contract, under which a trader supplies or agrees to supply a service to a consumer and the consumer pays or agrees to pay the price.''

From the EU Guidance behind the Directive upon which the UK Law is based:

http://ec.europa.eu/justice/consumer-marketing/files/crd_guidance_en.pdf

''Service contracts...should be included in the scope of this Directive, as well as contracts related to...the rental of accommodation for non-residential purposes.

For example, renting a parking space...is subject to the Directive. ''

Part 4 of these Regulations has provisions concerning protection from unsolicited sales and additional charges which have not been expressly agreed in advance (this was an unsolicited ‘service’ with a charge not expressly agreed at all, so this is a breach of the Regulations).
Regulation 39 introduces a new provision into the Consumer Protection from Unfair Trading Regulations 2008 which provides that a consumer is not required to pay for the unsolicited supply of products (as happened here – the Parking Charge Notice is an unsolicited invoice).
Regulation 40 provides that a consumer is not required to make payments in addition to those agreed for the trader’s main obligation, unless the consumer gave express consent before conclusion of the contract (no payments were expressly agreed at all and the car had a permit).

Information breaches of these Regulations:
Secure-A-Space Ltd. have failed to serve in a durable medium, ANY information as defined in these Regulations for Distance Contracts (i.e. not face-to-face) as set out in Article 13:
''Information to be provided before making a distance contract (13)
—(1) Before the consumer is bound by a distance contract, the trader — (a) must give or make available to the consumer the information listed in Schedule 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used, and (b) if a right to cancel exists, must give or make available to the consumer a cancellation form as set out in part B of Schedule 3.
(2) In so far as the information is provided on a durable medium, it must be legible.
(3) The information referred to in paragraphs (l), (m) and (n) of Schedule 2 may be provided by means of the model instructions on cancellation set out in part A of Schedule 3;
(4) Where a distance contract is concluded through a means of distance communication which allows limited space or time to display the information—
(a) the information listed in paragraphs (a), (b), (f), (g), (h), (l) and (s) of Schedule 2 must be provided on that means of communication in accordance with paragraphs (1) and (2), but (b) the other information required by paragraph (1) may be provided in another appropriate way.
(5) If the trader has not complied with paragraph (1) in respect of paragraph (g), (h) or (m) of Schedule 2, the consumer is not to bear the charges or costs referred to in those paragraphs.
(6) Any information that the trader gives the consumer as required by this regulation is to be treated as included as a term of the contract.
(7) A change to any of that information, made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.

Confirmation of distance contracts (16)
(1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium.
(2) The confirmation must include all the information referred to in Schedule 2 unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract.
(3) If the contract is for the supply of digital content not on a tangible medium and the consumer has given the consent and acknowledgment referred to in regulation 37(1)(a) and (b), the confirmation must include confirmation of the consent and acknowledgement.
(4) The confirmation must be provided within a reasonable time after the conclusion of the contract, but in any event—
(a) not later than the time of delivery of any goods supplied under the contract, and
(b) before performance begins of any service supplied under the contract.
(5) For the purposes of paragraph (4), the confirmation is treated as provided as soon as the trader has sent it or done what is necessary to make it available to the consumer.

Burden of proof in relation to off-premises and distance contracts (17)
(1) In case of dispute about the trader’s compliance with any provision of regulations 10 to 16, it is for the trader to show that the provision was complied with.

Cancellation period extended for breach of information requirement (31)
(1) This regulation applies if the trader does not provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2.
(2) If the trader provides the consumer with that information in the period of 12 months beginning with the first day of the 14 days mentioned in regulation 30(2) to (6), but otherwise in accordance with Part 2, the cancellation period ends at the end of 14 days after the consumer receives the information.
(3) Otherwise the cancellation period ends at the end of 12 months after the day on which it would have ended.''

Everything has been omitted, including no information given about the right to withdraw (there is no exemption from this even for distance contracts with limited space or time). If Secure-A-Space Ltd. counter this and contend theirs was not a distance contract then I disagree due to the alleged contract terms only being partially set out (with omissions) on a sign and on a permit which was not handed over in person, nor were the terms explained face-to-face, by Secure-A-Space Ltd. to the driver who only rents the apartment and was not familiar with the terms & conditions of parking. But even if this was to be defined as an on-premises contract, they have failed to provide the specific level of information set out in the above linked Regulations. This would include the name and geographic address and phone number of themselves and their principal, for complaints resolution, and the other information set out in the link as required for an on-premises contract. The burden falls upon Secure-A-Space Ltd. to prove this to the contrary and to show they have fully complied with the new Regulations.

Consequently, should PoPLA decide in favour of Secure-A-Space Ltd. I hereby give Secure-A-Space Ltd. notice that I am cancelling this alleged contract within the cancellation period extended to 12 months, as shown above, in cases where a company fails to provide the information required for a contract. This contract also fails the requirements for fair contracts within the EU Consumer Rights Directive and as such is not recoverable. As I have hereby cancelled it, there is no case to answer.

This concludes my PoPLA appeal against Secure-A-Space Ltd.’s Parking Charge Notice No. xxxxxxx, PoPLA verification code xxxxxxxx

Yours Faithfully,


BiscuitMuncher

Umkomaas

Initial comment - 3.75 thousand words is far too long. Sorry, but my eyes immediately glazed over when I saw the length of it.

There are only a very tiny number of us who actually involve ourselves in providing detailed critiques of POPLA appeal drafts and I can't give the time to go through all of this.

But the second point that struck me was:

This appeal is written on behalf of the registered keeper of the the vehicle in question

That's likely to cause a difficulty as only the RK (or actual driver) can appeal. Don't give POPLA any reason to throw this out.

And a third point, and I hesitate to suggest further addition, you seem (from your bullet point list) to have completely missed out what is arguably becoming a key appeal point, and recommended as the first and foremost in the appeal - No Keeper Liability. You absolutely need this in.

If you don't get any detailed feedback on your draft, you can either crop it down (significantly) so that someone has time to review it, or send it off hoping that SaS will be carpet bombed into submission - as they will have to plough through it and comment against your appeal points to POPLA. But be aware that if a regular hasn't gone through it all, you may have added something not to your advantage.

And to quote regular contributor ampersand, you need to make the POPLA Assessor 'your friend', I honestly think the size of the text block will not aid that.

HTH

BiscuitMuncher

Thanks. I didn't realise the word count was so big.

Your comments appreciated and will edit as necessary.

The_Deep

Is you landlord in the loop?


The T&C of your parking are contained in your AST, and only in your AST. If your landlord has not transposed correct details from the lease. then he/she is at fault.


You are in the clear, you owe nobody anything. It may be expedient to appeal, but, if you wish you can ignore completely. They would not be able to win a court action against you as you have kept to the AST conditions.


As you have made considerable effort to get a permit, (which according to you AST you do not need) you should ask your landlord to deal with this. He/she should put pressure on the MC to sack this PPC. If they do not he should consider the process of having the MC dismissed.


Landlords and their tenants should not have to put up with such time wasting nonsensence from PPCs.

hoohoo

Include as evidence your AST to show you do not need to obey the whims of the parking weasels.

BiscuitMuncher

Yes, the landlord is aware of this farce and he was surprised a permit was supposedly required. I have this in writing.

No mention of s permit being required in AST.

I understand that a lot of owners in the block are totally fed up with the MC as they do not perform on other issues either.

The_Deep

If the original lease from the landlord makes no specific mention of a parking permit, then no permit is needed. Anyone who tells you there is is attempting to interfere with your leasehold right to "quiet enjoyment" of your property, and offence under The Landlord and Tenant Acts.

BiscuitMuncher

I'm in the process of re-drafting the appeal and have got the word count down to about 1500 words. I cut out 6. Failure to comply with the Consumer Contracts completely.

The new draft is written for the registered keeper to submit.

I'll make "No Keeper Liability" point no. 1 as suggested but I've been trawling the forum for a suitable example. If anyone can point me in the right direction I would be grateful. I researched all my other points and totally forgot this one so it's like starting over and only a few days before submission date.

Happy New Year.