Loading/Unloading outside my property

Half_way

Congratulations on beating these parasites.
You now need to get a little pro-active, the issue is that if you let things lie then you may be stung again, or a friend relative or visitor of yours could be on the receiving end of these parasites.

Please take a read of the following, and come back with your thoughts, you need to get rid of these parasites and take action against the management agents - courtesy of Lynzer on pepipoo
Info: http://www.thebridesmother.co.uk/Media/residential-parking.pdf
Templates/examples http://www.thebridesmother.co.uk/Media/Templates.pdf

im_bigel

Hi guys I've just taken a look at my lease and it makes no mention of my designated bay. There is a mention of quiet enjoyment. There's also a section which says the following "the right for the leaseholder and all persons authorised by the leaseholder at all times to use the common parts for all purposes incidental to the occupation and enjoyment of the premises( but not further or otherwise). Are these the sections in my lease which I can use to argue my case and counter claim for dpa? There is another section which concerns me however! "Not to permit any vehicle of any description belonging to the leaseholder his family servants visitors or licensees to remain on any part of the common parts in such manner as to obstruct the ready approach to any part of the building or any adjoining premises PROVIDED THAT ( for the avoidance of doubt) there is no parking whatsoever in XXXXX Rd.

Coupon-mad

im_bigel wrote: »

Hi guys I've just taken a look at my lease and it makes no mention of my designated bay. There is a mention of quiet enjoyment. There's also a section which says the following "the right for the leaseholder and all persons authorised by the leaseholder at all times to use the common parts for all purposes incidental to the occupation and enjoyment of the premises( but not further or otherwise).

Are these the sections in my lease which I can use to argue my case and counter claim for dpa? There is another section which concerns me however! "Not to permit any vehicle of any description belonging to the leaseholder his family servants visitors or licensees to remain on any part of the common parts in such manner as to obstruct the ready approach to any part of the building or any adjoining premises PROVIDED THAT ( for the avoidance of doubt) there is no parking whatsoever in XXXXX Rd.

Yes but I don't recommend rushing into a counter claim. The claim for DPA breach - if you have a claim - can wait. Defend & win this first!

I am not liable to the Claimant for the sum claimed, or any sum at all and this is my Witness Statement in support of my Statement of Defence as already filed.

You've made the above into a witness statement (WS) talking about a previously filed defence. But this is meant to be that first defence, no evidence is filed yet and this is not headed up WS.

im_bigel

Thanks I'm gonna change that tomorrow. Do I simply refer to it as a defense statement?

Will The section regarding no parking whatsoever present a problem?

Coupon-mad

If you were parked in the road where the tenancy says 'no parking whatsoever' then I would say you have a problem if you show your lease - so I wouldn't!

And yes, you will see example defences in the NEWBIES thread post #2. You appear to have read too far and concentrated on example witness statements (which doesn't happen for a few months!).

im_bigel

'Dear Sirs' XXXXXXXX Parking and Property Management LTD

The facts in this statement come from my personal knowledge. Where they are not within my knowledge they are true to the best of my information and belief.

I am not liable to the Claimant for the sum claimed, or any sum at all and this is my Statement of Defence.

I assert that I am the registered keeper of the vehicle in question, registration xxx. I also assert that I was the registered keeper of that vehicle on the date 29/12/2016. I can also confirm that I was the driver of the vehicle.

1 . I stopped outside the entrance of my flat to unload a 40 inch television and 8 bags of grocery shopping. (this cannot reasonably be carried from my legal parking spot). At no time was I parked, and my vehicle was only unloading for a matter of minutes.

2. My lease imposes no Loading /unloading conditions although a permit for parking is displayed purely for the convenience of the claimant's parking attendant.

3. No parking has taken place therefore no Parking charge can be issued.

(A) The Road Traffic Regulation Act 1984 and The Highway Code talk about "parking","waiting", "loading or unloading" and "setting down or picking up passengers", each as a separate activity. "Loading and unloading" or "setting down or picking up passengers" are clearly different from parking or waiting.

(B) Loading or unloading with the permission of the landholder is not 'parking' and signs cannot override existing rights enjoyed by landowners and their visitors, as was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in a similar case number B9GF0A9E: 'JOPSON V HOME GUARD SERVICES’.

(C) In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not 'parking'.

(D) In the Jopson appeal it was also held that signs added later by a third party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new 'parking contract’.

(E) In any event, the signs make no offer to authorised visitors engaged in permitted loading/unloading for which no 'parking permit' was ever required (neither before the arrival of this Claimant onsite, nor after).

(F) In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728.
''After considering the facts at the time of the grant, Mr Justice Upjohn ruled that an ancillary right to stop, load and unload may be implied into the express grant of a right of way where such a right is necessary for the reasonable enjoyment of the right of way.'' The right of way in that case was: “To pass and re-pass with or without vehicles…for the purposes of obtaining access to the building…known as the auction mart.''

4. If it can be proven that "parking" has occurred The Claimant did not comply with the IPC code of practice (Part B 15.1), regarding grace periods: “Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.” 10 mins is generally accepted to be the minimum amount of time to read and understand a contract and make a decision to park or not to park.

5 . Signage.
The claimants signs do not mention anything regarding "loading" or "unloading" so it is impossible for any contract to be established. The claimants signs only mention "parking" and at no time was my vehicle "parked" otherwise than in accordance with. (Photograph evidence of sign boards are available to be provided upon request.)

6. The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

7. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Parking and Property Management Ltd and that they have a right to unilaterally remove or interfere with the overriding rights enjoyed by the lessee who is expressly allowed on site. The claimant is unable to re-offer a contract on more onerous terms that those already specified in the lease, which grants an easement/ right for the leaseholder at all times to use the common parts for all purposes incidental to the occupation and enjoyment of the premises.

8. If there was a contract, it is denied that the penalty charge is incorporated into the contract. The leaseholders' lease is missing any reference to parking permit requirements and involvement of Parking and Property Management Ltd. And there is no evidence that the original lease contract and revised lease contract with specific details of Parking and Property Management Ltd role and involvement was shared with the defendant.

9. Alternatively, even if there was a contract, the provision requiring payment of £160 is an unenforceable penalty clause.


(B) Further and alternatively, the provision requiring payment of £160 is unenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999 the Consumer Rights Act 2015.

( C) The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the Protection of Freedoms Act 2012 Schedule 4 specifically disallows.

(E) Furthermore, Paragraph 4, Schedule 4 of the Protection of Freedoms Act 2012 does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Claimant claims a sum of £100 as a ‘parking charge’ (for which liability is denied). The Particulars of Claim include an extra £60 that the claimant has untruthfully presented as parking charges plus interest.


10. This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.


11. This charge represents a breach of the well-known and well-established principle that 'a grantor shall not derogate from his grant'. This rule embodies a general legal principle that, if A agrees to confer a benefit on B, then A should not do anything that substantially deprives B of the enjoyment of that benefit.

12. Parking and Property Management Ltd are not the lawful occupier of the land.

(A) Parking and Property Management Ltd is not the lawful occupier of the land.

(B) absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus stand to bring this case.



13. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons:

(A) As the Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the locations in question
(B) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable;
(C) The penalty bears no relation to the circumstances as I was simply stopped for temporary loading/unloading and no loss or damage to the Claimant arose from this.
(D) The clause is specifically expressed to be a parking charge on the Claimant's current signs.


Statement of Truth:

I confirm that the contents of this statement are true to the best of my knowledge and belief.

im_bigel

I wasn't sure if i should include the "Roboclaim" section and the lack of particulars in POC or wait until witness statement?

Thanks in advance.

Coupon-mad

I would include the robo-claim section.

You don't need this:

(Photograph evidence of sign boards are available to be provided upon request.)

Either delete it or change it to the fact that photos will be provided with your witness statement and at any hearing.

I would remove 10 because you haven't relied on any promise to be allowed to unload, have you? Unless that's been promised before by the Managing Agent?

Did you park on the actual disallowed road, or not? If not, then DO refer to your lease.

I would remove the repetition here:

12. Parking and Property Management Ltd are not the lawful occupier of the land.

(A) Parking and Property Management Ltd is not the lawful occupier of the land.

im_bigel

"I would remove 10 because you haven't relied on any promise to be allowed to unload, have you? Unless that's been promised before by the Managing Agent?"

when permits were1st introduced they claimed to have chosen this company because they allowed 10mins grace for loading. I am searching for the letter but so far no joy! If i dont find it I will remove.

Did you park on the actual disallowed road, or not? If not, then DO refer to your lease.
My argument is I didn't Park and i was simply using the common parts to unload a purpose incidental to the occupation and enjoyment of the premises.?

will remove repetition and add lack of particulars and roboclaim

thanks again

Coupon-mad

when permits were1st introduced they claimed to have chosen this company because they allowed 10mins grace for loading. I am searching for the letter but so far no joy! If i dont find it I will remove.

Oh! Ask the MA for a copy of that letter. Sounds brilliant evidence.

My argument is I didn't Park and i was simply using the common parts to unload a purpose incidental to the occupation and enjoyment of the premises.?

True.