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

hoohoo

If you already appealed PCN 3 no need to appeal again. They have 35 days to respond.

After 35 days then is the time to complain to the BPA that they did not respond to your appeal.

The NTK they sent you is probably the result of them reading this forum and realising they need to send an ntk

BiscuitMuncher

Hello,

Just got the evidence pack from S-a-S for PCN's 1 & 2. I'm reading through it now. Just wondering can I post it here as a photo or just copy the text into a reply.

Thanks,

Coupon-mad

You could link us to photos of it hosted on tinypic or photobucket, for example. Or copy out the text and tell us whether they've included the landowner contract as proof of authority, or not.

BiscuitMuncher

Here is the summary S-A-S sent; I will upload the S-a-S/ management company contract ASAP


The vehicle xxx was observed by our Parking Attendant no x at xx:xx on xxxxxx at
xxxxxxxxxxx. It was issued with a Parking Charge Notice, at xxxx hours, after a period of 22 minutes observation, for “Failure to display a valid permit”. The parking attendant also checked carefully everywhere visible through the windows but no valid permit for this private site could be seen.
Secure A Space have had a contract with the managing agent and landowner, xxxxxxxxx,
of the entire xxxxxx complex, which dated originally from October 2012 and renewed again last
year, since changing legal entity to Ltd Company status. – see attached contract front and contract terms.
The terms and conditions of parking at the site are clearly displayed on Contractual Agreement signs around the site. The driver would have passed multiple signs from the entrance onwards, which state the terms and conditions of parking at this private site. Please see site map for positioning of signs and sign wording photo for the content. The nearest sign was shown in photographic evidence, located just to the front and right of where the vehicle was parked. This particular site is exempt from requiring a “P” style entrance sign due to the fact it is not open to use by the general public.
Our standard parking terms sign states that “By parking outside of a marked or allocated bay and/or not clearly displaying a valid permit will result in the driver agreeing to pay a Parking Charge Notice of £100.00 reduced to £60.00 if full payment is received within 14 days”.
The Appellant has already stated in their appeal that the driver was a resident and would have passed the above mentioned signs on a regular basis on entering and leaving the private site. They seem to state that their landlord had not made them aware of any parking restrictions or provided them with a valid permit to park. Frequently, residents let additional users into the private site with their key fob entry so we are informed, as are drivers by the way of Contractual Agreement signs displayed, that a valid permit must be displayed in windscreen of the vehicle. The appellant would have therefore had the opportunity to read and observe the terms and conditions of parking at the private site.
We are members of and approved contractors of the British Parking Association and are fully audited on an annual basis, including sign wording and placement etc. It is the Managing Agent’s choice of how the terms and conditions are set and we are only able to follow their instructions. Unfortunately they specify (clearly displayed on all signs) that a valid permit must be displayed. Whilst we understand that the driver may have a lease for the property they reside at, the lease is between the landlord and the tenant. Unless the tenant can provide proof that the Landlord has freehold title of the property, it is the Managing Agent/Land Owner for the entire who owns the freehold to each individual parking bay and as such have the right to set general parking terms and conditions for all residents/drivers to adhere to at this private site, providing they are displayed clearly for all drivers and residents to see.

A written notification was sent to every property owner back when parking restrictions were first implemented in 2011 and a copy of this has been provided from the Managing Agent.
As with any permit system, the permit acts as the authorisation to park as a way of informing other users and contractors such as Secure A Space in this case. The other type of authorisation would be for people who are not provided with permits and who require temporary access to the site such as contractors or service vehicles etc. This would be provided in writing to both the party involved and ourselves so as to avoid any incorrect Parking Charge Notices issued.
In this case, the proof of authorisation is only obtained by clearly displaying the valid permit in the windscreen. We have provided clear terms on signs for all drivers to read and observe when entering/parking at the private site.
The management company have clearly informed us on our enquiries, at no time was the appellant told he could park without his permit and he has provided no proof that this was the case.
The Parking Charge Notice is clearly that, a charge and not a penalty. At no point is the charge referred to as a penalty. We have provided a copy of the valid contract that is currently in place to show we have authorisation to control parking and the clear terms of permit holders only stated. The appellant has admitted to not having obtained a valid permit to park in his appeal.
The parking contract was offered to the driver and accepted by the driver when he remained at the location, then the contract was deemed formed. He has breached the terms of the contract and the specified sum is now due. The contract can only be cancelled if we choose to do so. If the appellant contends that we have not used a durable medium, a sign is by far the most appropriate medium for the provision of parking information which has been proved countless times in Court.
There is no requirement for a Keeper Liability Trail or details from of Keeper to have been obtained from DVLA records due to the fact that the appellant has provided details of the person responsible as driver and keeper of the vehicle in their original emails of appeal.
We therefore stand by the parking attendant issuing this Parking Charge Notice for the reasons contained herein.

Yours faithfully,

BiscuitMuncher

Contract front http://i63.tinypic.com/x2qvk9.jpg

Contract rear http://i68.tinypic.com/sdh1ro.jpg

I notice in paragraph 4 of the terms the charges are referred to as fines.

Seems to be some contradiction here.. S-A-S state “It is the Managing Agent’s choice of how the terms and conditions are set and we are only able to follow their instructions”
but in an email from the MC they state “We cannot wipe tickets” which I take to mean they cannot tell S-a-S what to do.

I'll look at the whole pack in more detail tomorrow.

Coupon-mad

The contract letter fails to demonstrate that the actual landowner has authorised Secure-a-Space to issue PCNs at all. The operator says that ''Secure A Space have had a contract with the managing agent and landowner'' but the contract they have produced has merely one client/signature of an unidentified person.

The client's name is redacted and, being a residential site it is very likely that the operator has only been taken on by the managing agents, who are not the landowners. POPLA in 2015 found on dozens of occasions in the public domain, that a contract that is not with the actual landowner is worthless as evidence. An agent firm with no proprietary interest or title in the land cannot authorise another agent firm without proving (for POPLA, or in court) that this authority properly flows from the landowner themselves.

The contract fails to identify the site, nor even show the site boundary. This could be anywhere but even if it is in the small print that this the right location, there is nothing to show which spaces/areas are considered to constitute the permit area of 'the site'.

The contract fails to state the hours or days of operation/restrictions, and exemptions and grace periods. It appears vital pages (Schedules?) are missing.

The contract fails to identify that any sum in the manner of a parking charge can be issued at all.

The contract fails to stipulate any contraventions, it merely states as a matter of fact 'permit holders only' so it cannot just be assumed therefore, what may constitute a breach.

The contract fails to meet the BPA Code of Practice requirement, specifically, to show that the operator is authorised by the landowner to enforce Parking Charges through the courts if necessary.

In addition, in my appeal I stated that the charge is not based upon a GPEOL and this is still a relevant consideration when an operator seeks to justify their charge. The operator has failed to show either that it is a simple financial contract with a charge based upon a GPEOL (they have not even supplied rudimentary calculations) or that their charge is otherwise justified by a persuasive legitimate purpose in the circumstances, to exceed nominal damages for trespass which would normally only be able to be claimed by a landowner, in any case.

In the Beavis decision it was stated at 97:

''ParkingEye concedes that the £85 is payable upon a breach of contract, and that it is not a pre-estimate of damages. As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass. This is because it lost nothing by the unauthorised use resulting from Mr Beavis overstaying.''

In the Beavis case it was not disputed that in cases of parking charges, the 'penalty rule' is certainly engaged and must be considered in every case. However, in that case and in that car park alone with those prominent signs (as the Supreme Court was at pains to Tweet on the day of the judgment) it was found that the charge was justified, considering the specific unusual facts surrounding the free parking offered, the need to provide a turnover of bays in a retail park and the attractive location of the site.

This situation is completely different and the operator has made no attempt at all to justify the disproportionate charge, not even to state if it is based upon damages. Just because they say 'this is not a penalty' that does not make it so. Secure-a-Space protest 'At no point is the charge referred to as a penalty' but I beg to differ. I notice in paragraph 4 of the 'terms' the charges are referred to as 'fines' which rather gives the game away as to the clear intention to punish drivers with a disproportionate charge, even residents. This is out of all proportion with any legitimate interest and it is not for me to fill in the gaps in the operator's evidence.

In Beavis it was found at 32:

''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest...in the enforcement of the primary obligation. {They} can have no proper interest in simply punishing the defaulter.''

Clearly it is in Secure-a-Space's interests to do exactly that; they punish defaulters and fail to liaise effectively with the Managing Agents to provide permits for new tenants in a fair, consistent and timely fashion. They cannot point to letters issued in 2011 to form a contract with a tenant who moved in just months ago, whose attention was never drawn towards their deliberately small, inconspicuous signs placed among others on site. No new resident walks around a site seeking out terms & conditions of a contract among other signs relating to the use of the communal rubbish bins, etc. It is incumbent upon the trader to ensure any terms are clearly communicated and therefore deemed to create a contract, in this case by implied consent. In Beavis the Judges decided that drivers could hardly fail to see the terms but in this car park the opposite is true.

In truth, the signs are scarce, unlit and not prominent at all and nor is the sum of the parking charge in the sort of 'large lettering' that was mentioned by more than one Judge, as a persuasive issue in Beavis. There was no contract formed with this operator which has failed to prove their charges are proportionate, justified at this level by any legitimate interest beyond profit and/or punishment, or even authorised by the landowner. As such, I trust that POPLA will accept my appeal.

Coupon-mad

Attach your rebuttal to an email to POPLA with the 10 digit code in the subject line and ask them to add your comments to the case file please. You won't be able to put that many words into the portal so don't try. Email is fine.

BiscuitMuncher

Coupon-Mad ... I redacted the address in the contract for the uploaded jpeg.

.. and of course, thank you very much for your reply and time taken to read and comment on this matter.

Coupon-mad

BiscuitMuncher wrote: »

Coupon-Mad ... I redacted the address in the contract for the uploaded jpeg.

OK so remove the bit about the site itself not being identified (the bit that says 'this could be anywhere'), but leave in the fact there is no identified site BOUNDARY. Does the 'client' appear as the Managing Agent, not the landowner?

You can crop and adapt that suggested rebuttal yourself so it suits, or add more if you can find other issues or if others add more thoughts.

BiscuitMuncher

First of all, thanks Coupon Mad for the help last night, very much appreciated. I've added some more points to my rebuttal and these are highlighted in red for convenience. Any comments welcome.

Dear Sir,

With regard to Secure-A-Space’s evidence pack I would like to make the following points and observations for your consideration:

The contract fails to state the hours or days of operation/restrictions, and exemptions and grace periods. It appears vital pages and/or Schedules are missing.

The contract fails to identify that any sum in the manner of a parking charge can be issued at all.

The contract fails to stipulate any contraventions, it merely states as a matter of fact 'permit holders only' so it cannot just be assumed therefore, what may constitute a breach. The attached site plans only show sign locations and parking bay numbers, they do not fully show the demarcation of the site boundary nor areas which are considered to constitute the permit area of 'the site'.

The contract fails to meet the BPA Code of Practice requirement, specifically, to show that the operator is authorised by the landowner to enforce Parking Charges through the courts if necessary.

Under Schedule 2 of the contract “The Fee” it states that there will be no charge for set up, patrol and maintenance of the site, only fees for permits and additional signage. I must presume the only way Secure-a-Space can make money, unless they are a charity, is by issuing PCN's to bona fide residents who may have made a genuine mistake. I understand a permit costs £27.60 which my landlord paid on 8th December 2015 as he too could not understand this situation.

In addition, in my appeal I stated that the charge is not based upon a GPEOL and this is still a relevant consideration when an operator seeks to justify their charge. The operator has failed to show either that it is a charge based upon a GPEOL (not even supplying rudimentary calculations to justify it) or that their charge is otherwise justified in the circumstances, to show that it can fairly be taken to exceed nominal damages for trespass (which would normally only be able to be claimed by a landowner).

In the Beavis decision it was stated at 97:

''ParkingEye concedes that the £85 is payable upon a breach of contract, and that it is not a pre-estimate of damages. As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass. This is because it lost nothing by the unauthorised use resulting from Mr Beavis overstaying.''

In the Beavis case it was not disputed that in cases of parking charges, the 'penalty rule' is certainly engaged and must be considered in every case. However, in that case and in that car park alone with those prominent signs (as the Supreme Court was at pains to Tweet on the day of the judgment) it was found that the charge was justified, considering the specific unusual facts surrounding the free parking offered, the need to provide a turnover of bays in a retail park and the attractive location of the site.

This situation is completely different and the operator has made no attempt at all to justify the disproportionate charge, not even to state if it is based upon damages. Just because they say 'this is not a penalty' that does not make it so. Secure-a-Space protest 'At no point is the charge referred to as a penalty' but I beg to differ. I notice in paragraph 4 of the 'terms' the charges are referred to as 'fines' i.e. a sum of money exacted as a penalty, (which rather gives the game away as to the clear intention to punish drivers with a disproportionate charge, even residents. This is out of all proportion with any legitimate interest and it is not for me to fill in the gaps in the operator's evidence.

In Beavis it was found at 32:

''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation. The innocent party can have no proper interest in simply punishing the defaulter.''

Clearly it is in Secure-a-Space's interests to do exactly that; they punish defaulters and fail to liaise effectively with the Managing Agents to provide permits for new tenants in a fair, consistent and timely fashion. They cannot point to letters issued in 2011 to form a contract with a tenant who moved in just months ago, whose attention was never drawn towards their deliberately small, inconspicuous signs placed among others on site. No new resident walks around a site seeking out terms & conditions of a contract among other signs relating to the use of the communal rubbish bins, etc. It is incumbent upon the trader to ensure any terms are clearly communicated and therefore deemed to create a contract, in this case by implied consent. In Beavis the Judges decided that drivers could hardly fail to see the terms but in this car park the opposite is true.

In truth, the signs are scarce, unlit and not prominent at all and nor is the sum of the parking charge in the sort of 'large lettering' that was mentioned by more than one Judge, as a persuasive issue in Beavis. There was no contract formed with this operator which has failed to prove their charges are proportionate, justified at this level by any legitimate interest beyond profit and/or punishment, or even authorised by the landowner. As such, I trust that POPLA will accept my appeal but I would also like to make the following points:

I find the photographs supplied by Secure-a- Space of the inside of my vehicle (link here for forum http://i63.tinypic.com/2nswls.jpg ) a complete invasion of my privacy and are in total disregard of my Tenancy Agreement right of Quiet enjoyment of the property. These internal photographs were taken after the issue of the ticket at 6:11, I have no idea what they intend to prove but to have someone sneaking around a private car park at 6am with a camera taking photographs of private property seems to be totally unethical.

The detailed photograph provide by Secure-a-Space of their sign is (link here for forum http://i68.tinypic.com/ih3ax0.jpg ) not date stamped and has been cropped to make the small print legible. As can be seen in Secure-a-Space's own photograph of the sign in-situ the small print is illegible.

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 smaller fonts are difficult to read from the location of the registered keeper’s parking bay. Only upon close inspection is the sign fully legible.

The photograph of the carpark entrance is dated 25/08/2015, therefore, I would suggest it is not relevant to this appeal.

Once again I look forward to your acceptance of my appeal.

Yours Faithfully,

BiscuitMuncher