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

BiscuitMuncher

Here is a rework of my POPLA appeal for PCN 4 where no NtK was received. I've moved "no keeper liability" up to point 1 and re-titled it and point 2 is now based on Salmosolaris's post here https://forums.moneysavingexpert.com/discussion/5417876

Dear PoPLA Assessor,

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 Notice To Keeper (NtK) was issued as required by schedule 4 of POFA therefore there can be no keeper liability.

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

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

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

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

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


1. No Notice To Keeper (NtK) was issued as required by schedule 4 of POFA therefore there can be 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 xx/xx/2015 and it is understood that the NtK was required to reach the registered keeper by xx/xx/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 has 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.

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

(THE FOLLOWING IS FROM SALMOSOLARIS’S POST HERE https://forums.moneysavingexpert.com/discussion/5417876 WITH SLIGHT ADAPTATION TO SUIT MY CASE SHOWN IN BOLD ITALICS)

The Operator has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable Unfair Contract Term, and this case can easily be distinguished from ParkingEye v Beavis.

1. The Operator may seek to rely on the case of ParkingEye v Beavis as legitimising the charge in this case. The appellant will make the following observations as to why the material case can be easily distinguished from it. The Supreme Court adjudged that the charge in ParkingEye v Beavis could not be considered a penalty, despite the fact that ParkingEye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as:

“97 a. The need to provide parking spaces for their commercial tenants prospective customers;-
b. The desirability of that parking being free so as to attract customers;-
c. The need to ensure a reasonable turnover of that parking so as to increase the potential
number of such customers;-
d. The related need to prevent `misuse' of the parking for purposes unconnected with the tenants
business, for example by commuters going to work or shoppers going to o -park premises; and
e. The desirability of running that parking scheme at no cost, or ideally some profit, to them-selves.”

In that case the penalty rule had been engaged by the charge but was then disengaged for the above reasons. In this case the appellant would submit that the penalty rule has similarly been engaged but in contrast it is not disengaged,the Operator has made no loss and the charge is a penalty . The vehicle was fully entitled to park as it did . The Operator has been given evidence that the vehicle was parked in its own allocated bay. The only alleged error is that a permit was not displayed ( not that there is any obligation to ). Had this been done it would have prevented a parking charge notice being issued.

The Operator has no legitimate interest in enforcing this charge, Their only interest is to seek to profit from an inadvertent error . Their charge remains an unenforceable penalty as none of the legitimate interests pursued in Parking Eye v Beavis are present in this case. To quote the passage referred to in the Supreme Court judgment.

“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 Supreme Court made clear that their judgment related only to that particular car park and how it operated. In this situation it is impossible, without intellectual dishonesty, to believe that they would determine that this inadvertent error would justify such a disproportionate, extravagant and unconscionable charge when the vehicle was parked in its own allocated bay where it has every entitlement to. Careful analysis of the Supreme Court judgment is not ,as the Operator may believe, a judicial green light legitimising all parking charges.It is indeed quite the reverse , and the onus is on the Claimant to demonstrate that they have a legitimate interest in enforcing their charge and that the charge is proportionate to that interest. In this case they do not and it is not.

2. In this case the imposition of a £100 charge for not displaying an unnecessary permit is quite obviously causing an imbalance of the parties’ rights to the detriment of the appellant contrary to the requirements of good faith. Had a permit been displayed then no such charge would have been issued. It is difficult to imagine a more obvious Unfair Contract Term when all manner of reasons could cause such an oversight. No reasonable person would agree to this charge and the charge is not achieving any objective whatsoever other than punishing an inadvertent error.

FOLLOWING UNDERLINED SECTION FROM ORIGINAL APPEAL IS REPLACED BY THE ABOVE
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, xxxxxx 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).


3. 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.

4. 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.

5. 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).

6. 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).

The parking charge of £100 is in small font. Inadequate notice of a 'parking charge' means there was no 'relevant obligation' and no relevant contract, contrary to 2(3) of schedule 4 of the POFA.



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

Yours Sincerely,

BiscuitMuncher

Coupon-mad

That'll do nicely , surely.

BiscuitMuncher

All, thanks again for help and comments.

Appeal for PCN 3 (NtK received) to follow....

BiscuitMuncher

I am in the process of writing my POPLA appeal for PCN 3.

In this case, unlike my PCN 4 POPLA appeal which I finalised a few days ago, I did receive a Ntk from PCS on behalf of S-a-S.

With reference to https://forums.moneysavingexpert.com/discussion/5418313 and this from https://forums.moneysavingexpert.com/discussion/comment/70085680#Comment_70085680 I was going to add this to my appeal:

“Non-compliant NtK, therefore no keeper liability

The driver is not known in this case. Schedule 4 paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the conditions set out in paragraph 6 of Schedule 4 have not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.
The NTK from PCS does not contain the statutory wording required due to the omissions as stated below.

• The notice to keeper is not compliant with paragraph 9 (2)(h) of schedule 4 of POFA 2012 in that the NTK makes no reference to details of the discount for payment within 14 days. Under the BPA Code of Practice the Discount should be at least 40% of the full charge. PCS/Secure-a-Space Ltd. have failed to mention any discount in the NTK and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.

• The Notice to Keeper is non-compliant with the Protection of Freedoms Act 2012, Schedule 4 in that it fails to show when the observed parking period for the alleged infringement actually started. This time is shown on the Parking Charge Notice but not repeated on the NtK as required. The NTK does not give the time period in which the car was parked, again PCS/Secure-a-Space Ltd. have failed to do comply and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.”

Except for the NTK issues my appeal will be as PCN 4 appeal.

Thanks in advance for comments.

Biscuit Muncher

Coupon-mad

POPLA will say it is compliant anyway because they've done the same with ParkingEye ones which have 2 or 3 omissions!

You may as well try though and add in the fact there is no 'date sent' or 'date given' on the NTK (which is not the 'issue' date because you can no doubt state the Notice was posted later and arrived after a week...that's normally the case).

I would also quote word for word, paragraph 8 where it says a NTK 'must' repeat certain info from the PCN' to try to get POPLA to actually look and not just say the NTK is OK as they've given it a cursory glance.

BiscuitMuncher

The brown "official" looking envelope it arrived in wasn't franked so no clue of date sent.

Coupon-mad

I would still say it wasn't the date posted because it arrived a week later, whether you can remember the date or not. Won't do any harm. The 'date issued' is almost never the 'date posted' of a NTK from any firm that issues post in bulk like PCS do.

BiscuitMuncher

POPLA decision for PCN 1:

DecisionUnsuccessful
Assessor NameKayleigh Craven
Assessor summary of operator case
The operator states that it issued the Parking Charge Notice (PCN) on the basis that the appellant’s vehicle failed to display a valid parking permit.

Assessor summary of your case
The appellant states they are genuine resident parked in their own space, fully complying with the terms and conditions of the Assured Shorthold Tenancy Agreement, and says that their tenancy agreement does not advise a permit is required. The appellant says that the operator has not sent a notice to keeper.

The appellant says that the operator has no standing or authority to pursue charges nor form contracts with motorists, therefore there is contract between the operator and the driver. The appellant states that signage within the parking area is misleading and ambiguous. The appellant says that the PCN does not represent a genuine pre-estimate of loss.

Assessor supporting rational for decision
The operator states that it issued the PCN because the appellant’s vehicle failed to display a valid parking permit. The operator has provided numerous photographs of the appellant’s vehicle which clearly show there was no permit on display. The appellant says that the operator has not sent a notice to keeper. The operator has also provided evidence of an email from the appellant’s uncle confirming that the appellant is the driver/registered keeper of the vehicle and was not aware that a permit was required. As the driver has been identified upon appeal, there is no requirement for the operator to issue a notice to keeper. The appellant states they are genuine resident parked in their own space, fully complying with the terms and conditions of the Assured Shorthold Tenancy Agreement, and says that their tenancy agreement does not advise a permit is required. The appellant says that the operator has no standing or authority to pursue charges nor form contracts with motorists, therefore there is contract between the operator and the driver.

The operator has provided evidence confirming that it has an agreement with the landowner (Xxxxx Management) to undertake parking management, control and enforcement at xxxxxx. The appellant has provided a copy of his tenancy agreement. This agreement is between the appellant and his landlord. While the landlord may be the owner of the flat and the allocated space, the land itself is actually owned by xxxxx xxxxx Management. I am satisfied that the operator has the authority to issue PNC’s to vehicles in contravention of the terms and conditions. I agree that the tenancy agreement does not specify that a permit is required, however this is something that the appellant should take up with his landlord as to why he was not made aware and given a permit to park in their allocated space. The appellant states that signage within the parking area is misleading and ambiguous. Within Section 18.1 of the British Parking Association (BPA) Code of Practice it states that “A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass.

In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 18.3 of the BPA Code of Practice states, “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”. It then goes on to advise that “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.” The operator has provided a number of photographs of signage at the site both at the entrance to and within the car park, one which is very close proximity to the appellant’s vehicle. The signage advises motorists “This Private Land is for the Parking of Motor Vehicles. By Parking Outside of a Marked or Allocated Bay and/or Not Clearly Displaying a Valid Permit which must be displayed in the windscreen of the vehicle or authorised by site management will result in the Driver Agreeing to Pay A Parking Charge Notice of £100.00”.

I consider the photographic evidence to show that the operator met the minimum standards set by the BPA and that the signage was sufficient for the appellant to have read and understood the terms and conditions of parking. The appellant says that the PCN does not represent a genuine pre-estimate of loss. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets.

The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” Having considered the decision of the Supreme Court, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. The evidence I have received shows the appellant’s vehicle was parked in a permit holders only area, without displaying a valid permit.

Quentin

BiscuitMuncher wrote: »

The operator has also provided evidence of an email from the appellant’s uncle confirming that the appellant is the driver/registered keeper of the vehicle ...... As the driver has been identified upon appeal, there is no requirement for the operator to issue a notice to keeper. .....

How did your uncle get involved in outing you as the driver??

dazster

Quentin wrote: »

How did your uncle get involved in outing you as the driver??

And how is his uncle's "testimony" any more relevant than that of some random stranger?