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

BiscuitMuncher

At least it is one less Popla appeal to do

BiscuitMuncher

Almost time to submit my POPLA appeals for PCN 3 due 1st March and PCN 4 due 5th March.

PCN 3: I received a NTK from PCS within the time limit (i.e. before day 56) and am just reading up on this thread https://forums.moneysavingexpert.com/discussion/5418313 . I’ll post my POPLA draft for this soon.

PCN 4: No NTK has been received at all. Below is my appeal based on my PCN 1 & 2 POPLA appeals with the point about no NTK highlighted in red. I have put this as the last point, does it need to be the first?

Also attached to PCN 4 rejection are photos of the vehicle, in a photo timed 23:07 there is one windscreen ticket visible, on a photo timed 23:09 there are two windscreen tickets visible on the car… Can I make something of this in my appeal?

The S-a-S rejection letters for PCN 3 & 4 quote Beavis v Parking Eye so I wonder if I need to make more of that in my POPLA appeal.

@Coupon-Mad… and I am also accused of “not entering into the spirit of the legislation”! LOL - of course I am deeply sorry about this




Dear PoPLA Assessor,

re: PoPLA case verification code xxxxxxxxxx
Parking Charge Notice No. 4, Issue Date xx/xx/xx

This appeal is made as the legal tenant of the premises who has every right to park in the premises’ allocated parking bay. The Assured Shorthold Tenancy (AST) Agreement, which is signed by the Tenant and the Landlord, is the supreme legal document in all matters relating to the premises including parking requirements. There are no restrictions in place in the context of displaying parking permits. No third party can can adjust or amend the legal agreement with the landlord.

A summary of the main points of appeal is as follows:

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

2. No contract between Secure-A-Space Ltd. and the driver.

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

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

5. No genuine pre-estimate of loss. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67.

6. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability

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

I believe that this Private Parking Company 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.

2. No contract between Secure-A-Space Ltd. and the driver.

As per the Tenancy Agreement signed and agreed to in September 2015, there is no mention of Secure-A-Space Ltd., nor 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. 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.

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

The appellant is a co-signatory to the Assured Shorthold Tenancy Agreement. Clause 15 of the AST, signed and agreed to in September 2015, 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.

This extract of the AST is attached with this PoPLA appeal. A fully unredacted copy of the AST can supplied 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.”

However, to keep a good relationship with the Management Company, a permit was applied for on 30/11/15 via both the Management Company and the Landlord (Please refer to copy emails attached to this appeal).

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. The vehicle was parked in its allowed parking bay (Please refer to Photo No. 4).

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

The signage does not comply with the BPA CoP para 18 and Appendix B.

The registered keeper interpreted the signage to mean 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. 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”. The signage is difficult to read from the location of the registered keeper’s parking bay which is more than 4 metres away from the nearest sign. Only upon close inspection is the sign fully legible. (Please refer to Photo No. 1).

5. No genuine pre-estimate of loss. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67.

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, Xxxxx 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.

No comparison can be made between the ParkingEye Ltd. v. Beavis case. There is a clear distinction and difference between the Beavis circumstances of a free retail car park where turnover of vehicles was deemed essential to businesses on the park, plus car park abusing commuters catching trains from the nearby station, and these circumstances where a paying tenant with a duly signed Assured Shorthold Tenancy Agreement has unequivocal rights to parking in a private residential car park.

As not all tenants in the 10 storey apartment block own motor cars the parking area is usually approximately 70% occupied. 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. (Please refer to Photo Nos. 2 & 3).

6. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
To date no Notice to Keeper (NTK) has been issued a by Secure-A-Space Ltd. As a Notice to Driver was provided on the vehicle, an NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. This stipulation is laid out in Schedule 4 of the Protection of Freedoms Act 2012 (PoFA).

The alleged infringement occurred on 12/12/2015 and it is understood that the NTK was required to reach the registered keeper by 06/02/2016. As none of the mandatory information set out by Schedule 4 paragraphs 8 and 9 of the PoFA has been made available to the Registered Keeper the conditions set out by paragraph 6 of Schedule 4 have not been complied with. Therefore, there can be no keeper liability and as a result I request that Secure-A-Space Ltd. provide evidence to POPLA of who the driver was.

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the Registered Keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. This operator failed to serve any NTK at all. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.


This concludes my PoPLA appeal against Secure-A-Space Ltd.’s Parking Charge Notice No. 4, PoPLA verification code xxxxxxxxx

Yours Sincerely,

Biscuit Muncher

nigelbb

No keeper liability because there was no NTK should be point 1 as it absolutely kills the PPC's claim.

Herzlos

As an aside; did you check with the DVLA that S-a-S requested your vehicles details on 5 separate occasions?

Fruitcake

nigelbb wrote: »

No keeper liability because there was no NTK should be point 1 as it absolutely kills the PPC's claim.

Except that it makes the assessors read the rest and may rule on something else first. It's always good to have a different winning argument in the bank for future use.

BiscuitMuncher

@Herzlos.... For PCN 1 & 2 I admitted I was the driver in the initial appeals to S-a-S, this was before I found this forum and when I thought I was dealing with a company of some integrity and before I knew all about the murky world of PPCs.

PCN 5 has been cancelled by the PPC.

For PCN 3 & 4 I used the standard appeal template as per the newbies sticky.

Should I check with DVLA that details were requested on these two separate occasions?

Thanks.

dazster

You might want to write to S-a-S pointing out that the space is demised to you under the terms of your tenancy, that you withdraw any implied right of access they may believe they have, and you are prepared to sue for trespass if they enter your space again.

If you are feeling really cheeky you could remind Mr. and Mrs. Stiles of their last (very expensive) foray into court and ask if they wish to repeat the experience:

http://davidmarq.com/uploaderv6_1/files/7/Stiles%20v%20Welcome%20Financial%20Services%20Limited%20and%20anr.pdf

BiscuitMuncher

Thanks for that Dazster..... I did read it a few weeks ago when I did a Google search for the esteemed directors of S-a-S. I also found this article about their charitable nature http://m.guardian-series.co.uk/news/8281542.LOUGHTON__Woman_s_car_is_clamped_while_she_suffers_an_asthma_attack/?ref=rss

Herzlos

BiscuitMuncher wrote: »

@Herzlos.... For PCN 1 & 2 I admitted I was the driver in the initial appeals to S-a-S, this was before I found this forum and when I thought I was dealing with a company of some integrity and before I knew all about the murky world of PPCs.

PCN 5 has been cancelled by the PPC.

For PCN 3 & 4 I used the standard appeal template as per the newbies sticky.

Should I check with DVLA that details were requested on these two separate occasions?

Thanks.

To comply with POFA2012 and their own code of practice, they must get your details from the DVLA for each alleged incident. The DVLA doesn't really care about breaches unless they are being diddled out of money. So for any ticket you get which is followed up by mail they should have applied. Some of the less scrupulous companies will only do it once, or use the address you gave them in the first contact, and thus never contact the DVLA at all.

But from what you said, they've never sent you a NtK for any of the 5?

BiscuitMuncher

I've only received a NTK for PCN 3. That was issued from PCS on behalf of S-a-S