Elite Management (Midlands) Ltd

dadachu

Dear All i would be grateful for some advice and guidance

I drive a car which i lease from my employer and as such the registered keeper is the lease company.

I have received a Parking Charge Notice issued by Elite Management (Midlands) Ltd at my place of work for failing to display a parking permit.

I am a civil servant and work for a government department, however the building i work in is not a Crown Building and our office space is privately rented from the landlord of the building.Included in the rental agreement use is the use of a number of designated car parking spaces for our use. For which we are required to display a parking permit with the reg number of the vehicle parked.

For sometime now we have been using temporary parking permits issued by the landlords site supervisor, as the old ones had expired and had not been replaced by Elite. These temporary permits can best be described as flimsy photo copied pieces of paper bearing the site supervisors signature and the reg number of the vehicle.

On the day in question i placed my temporary permit on the dashboard however unbeknown to me it became dislodged and fell between drivers seat and door and was not visible, hence the ticket.

I have subsequently appealed to Elite on the basis that;
a, I was legitimately parked as i have a valid permit and enclosed a copy.
b, It was an unconscious act not deliberate or malicious
c, The correct permits had not been issued
d, There was no loss as the car park charge had been paid via the rental agreement with my employer.

Unfortunately i when i appealed to Elite, i hadn't read these threads or the newbie sticky, and i identified myself to them as the driver and the time i was parked.

I also advised the lease company of the PCN, my intention to appeal and request that they do not pass on my home details to Elite.

Surprise surprise they denied my appeal !

I have also approached the landlords managing agent who has declined to intervene on my behalf.

Elite do not know my home address only my place of work and my appeal was made using my work email address.

I now intend to appeal to POPLA, however before i do this should i write to Elite asking for their Photo showing my car, are they pursuing under breach of contract, copy of their contract with the landlord and their authority etc?

I have read BPA code of conduct and have already identified a couple areas in which i believe have breached the code of conduct.

Namely the plastic bag affixed to my windscreen,in which the Parking Charge Notice was enclosed clearly states 'PENALTY CHARGE NOTICE' and its an offence for anyone other than driver to remove.
which i believe is a breach of section 14.2
i.e."You must not use terms which imply that parking is
being managed, controlled and enforced under statutory authority. This includes using terms such as ‘fine’, ‘penalty’
or ‘penalty charge notice’."
and section 20.5c
You should not use wording on your plastic PCN
envelopes which implies that you are acting under
statutory authority. For example phrases such as ‘It is an
offence to remove .....’, should be avoided

Also i appealed by email on 7th July 2017 and did not receive an acknowledgment or response until today 24th July 2017 which is clearly more than 14 days as set out in section 22.8

i.e. You must acknowledge or reply to the appeal within 14
days of receiving it. If at first you only acknowledge the
appeal, or your reply does not fully resolve it, normally
we would expect you to seek the additional information
you require from the motorist and accept or reject
the appeal in writing not more than 35 days after the
information required to resolve it has been received
from the motorist. It is acknowledged that in exceptional
circumstances, an investigation into a appeal may take
longer than 35 days after such information has been
received and in these instances the motorist must be
advised accordingly and given a date by which they
can expect a resolution. If this date cannot be achieved
then the motorist must be written to again and a
revised resolution date agreed. We may require you to
demonstrate that you are keeping to these times

Nor does the PCN state the period i was parked only the time the PCN was issued, although in my appeal to Elite i did state the period i had entered the car park and time i returned to my car.

I would also be grateful for an opinion on whether i have a contract with Elite/Landlord or does my employer ?

Also do you feel there would be any mileage in appealing under GPEOL ?

Cheers and thanks in advance for any help

Redx

GPEOL wont work since BEAVIS lost almost 2 years ago

if you have a POPLA code , appeal to popla , draft up an appeal and post it for critique

the PPC have to provide the info in their evidence pack, so you will get to see it once popla get it, so no point asking the PPC for anything as they wont give you anything anyway

dadachu

Hi again i will draft an appeal for your comments etc
Just a couple of things , presumably as i've shot myself in the foot by identifying myself as the driver, that precludes me using the NTK & POFA 2012 route?
Also can i say the PPC hasn't shown Land owner authority on the basis that it is not shown in PCN ?
Could also say that the £60/£100 constitutes a penalty as it distinguished from the Beavis case in that the charge has already been paid via rental agreement?
Again thanks for any help and advice

Coupon-mad

presumably as i've shot myself in the foot by identifying myself as the driver, that precludes me using the NTK & POFA 2012 route?

Yes, loads of people who come here at this stage are in the same boat.

We still win almost all cases though.

I now intend to appeal to POPLA, however before i do this should i write to Elite

Never. Just proceed to POPLA after showing us your draft, based on the templates in post #3 of the NEWBIES thread, most appeal points are already written, just put them together.

it is futile to try to distinguish a case from Beavis, at POPLA, because it is clear that their Assessors have been badly trained (who knows why, but in other news, their paymasters are the BPA). POPLA simply do not understand the Beavis case, nor show any signs of wanting to care how it can, or clearly cannot, be applied to other cases.

And as for using it in an appeal in your favour, no chance, the Assessors' templates for rejecting POPLA appeals just cannot compute that.

So stick to the usual arguments and don't worry about it. Elite Management (Midlands) Ltd are not the sharpest tools in the box.

dadachu

Well here is my first draft for POPLA appeal
I would be grateful for you comments and advice thanks

POPLA verification code xxxxxxxxx
I wish to appeal against the imposition of Parking Charge Notice xxxxx issued by Elite Management (Midlands) Ltd
As the driver of the above vehicle, I wish to appeal the parking charge notice ParkingEye Ltd issued against the mentioned vehicle. I believe the parking charge notice should be cancelled based on the following grounds:
Grounds for appeal
1, Breach of BPA Approved Operator Scheme Code of Practice.
2, Parking Charge Notice is unclear, misleading and contradictory
3, Breach of POFA 2012
4, No Land Owner Authority
5, There is no contract between the driver and Elite Management or Land Owner
6, The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself,
7, The charge is a penalty.
It is my contention that the driver was parked legitimately and Elite Management (Midlands) Ltd are culpable, due to their lax administration, in creating the circumstances in which this event occurred. In the course of this event Elite Management (Midlands) Ltd have made numerous breaches in BPA code of conduct.
As part of the rental agreement between the landlord and the driver’s employers, the drivers employer receives the use of a number of designated car park spaces at the site of the event. The driver is a permit holder entitled to use one of the said spaces. The car park is administered and patrolled by Elite Management (Midlands) Ltd, this includes the responsibility for providing the employer with the relevant parking permits. At the time of the event the existing permanent permits had expired and had not been replaced by Elite Management (Midlands) Ltd nor had they issued permits to any new users, even though these and replacements had been requested numerous times by the employer. In view of this, for a period of over four months, drivers were required to use a number of temporary permits, issued on an Ad Hoc basis by the land lord’s site supervisor, to enable them to park. These permits can be best described as flimsy pieces of paper and easily dislodged.
On the day of the in event in question, the driver placed the temporary permit above the dashboard and exited the car. Unbeknownst to them the temporary permit had become dislodged and fell between the seat and the driver’s door. When they later returned to the car they found the PENALTY CHARGE NOTICE attached to their windscreen, for not displaying a permit.
The driver has appealed to Elite Management (Midlands) Ltd however the appeal was denied, even though this response was over fourteens after the appeal was received by Elite Management (Midlands) Ltd, and having made no acknowledgment of the appeal prior to the denial.
I now submit the following evidence;
1, Breach of BPA Approved Operator Scheme Code of Practice.
I submit that Elite Management (Midlands) Ltd are in breach of the Code of Practice on the following points;
a , The plastic bag affixed to my windscreen, in which the Parking Charge Notice was enclosed clearly states 'PENALTY CHARGE NOTICE' and also states “IT IS AN OFFENCE FOR ANY PERSON OTHER THAN THE DRIVER TO REMOVE THIS NOTICE” which i believe is a breach of section 14.2
i.e "You must not use terms which imply that parking is being managed, controlled and enforced under statutory authority. This includes using terms such as ‘fine’, ‘penalty’ or ‘penalty charge notice’."
and also section 20.5c
“You should not use wording on your plastic PCN envelopes which implies that you are acting under statutory authority. For example phrases such as ‘It is an offence to remove .....’, should be avoided”
Thus the wording on the plastic bag clearly shows this is a Penalty and not a charge or invoice.
b , Elite Management (Midlands) Ltd failed to respond to my appeal with the relevant timescale i.e. The original appeal was sent to Elite Management (Midlands) Ltd by email on 7th July 2017 and no acknowledgment or response was received until 24th July 2017, when the appeal was turned down, which is clearly more than 14 days as set out in section 22.8
i.e. You must acknowledge or reply to the appeal within 14 days of receiving it. If at first you only acknowledge the appeal, or your reply does not fully resolve it, normally we would expect you to seek the additional information you require from the motorist and accept or reject the appeal in writing not more than 35 days after the information required to resolve it has been received from the motorist. It is acknowledged that in exceptional circumstances, an investigation into a appeal may take longer than 35 days after such information has been received and in these instances the motorist must be advised accordingly and given a date by which they can expect a resolution. If this date cannot be achieved then the motorist must be written to again and a revised resolution date agreed. We may require you to demonstrate that you are keeping to these times”
2, The Parking Charge Notice and subsequent appeal rejection letter are unclear, misleading and contradictory.
The Parking charge notice is unclear and misleading namely it is unclear which box has been marked for the charge requested i.e. the apex of the cross is directly on the line between the £90 and £60 sum required. This is further confused by the response to my appeal from Elite Management (Midlands) Ltd, stating the appeal had failed, which refers to “you will be required to pay the full amount (£100 per PCN)”. This is misleading, in that there is no reference to £100 on PCN. Therefore it is unclear as to what amount the charge is and gives credence and added weight to the argument that this is a penalty rather than a charge, as there is no reference to the full amount of £100 on PCN. It seems that Elite are making it up as they go along.
Along with the above the notice from Elite Management (Midlands) Ltd stating the appeal had failed refers to the site of the car park event as ‘xx xxxxxxx Court xxxxxxxx’ whereas the PCN states ‘xx xxxxxxxx House xxxxxxx’.
I also note that the PO Box addresses listed on the PCN for Elite Management (Midlands) Ltd are different to that of the appeal rejection notification, also the registered office for the company listed on PCN is false address. Namely the previous address that was changed at companies house over 5 years ago on 13 Mar 2012. i.e. PCN states registered office is Bradford House, 41 Commercial Road, Wolverhampton, West Midlands, WV1 3RQ whereas companies house shows that this was changed on to Harmony House 34 High Street, Aldridge, Walsall, West Midlands, WS9 8LZ (see attached PDF Companies house). This again would suggest a further breach of BPA Code
i.e. 2.6 states ‘Members of the public should be able to expect that you will keep to the law, and act in a professional, reasonable and diligent way.’
The Oxford dictionary’s definition of diligence is;
‘Having or showing care and conscientiousness in one's work or duties’,
With an alternative definition being, ‘Careful and persistent work or effort’.
The above discrepancies, and those noted in point 1, are clearly not professional or diligent. I would suggest they are deliberately misleading or at best extremely negligent.
This lack of professionalism and diligence can also be demonstrated by the fact that Elite Management (Midlands) Ltd failed to provide the correct passes resulting car park users having to rely on temporary passes (which can be best described as flimsy, photocopied many times over, pieces of paper) issued by the site supervisor that are easily dislodged.
I have also been informed that the parking attendant, who is tasked with issuing the PCN at the site, is paid a commission per ticket issued. If this is the case this, again, would be a clear contravention of the Code of Practice i.e. Section 9.4 states
“Effective from 1st October 2015, the practice of offering financial incentives to AOS parking attendant/Wardens which relate to the quantity of PCNs issued by them should be prohibited within all new employee contracts”

3, Breach of POFA 2012
Paragraph 9 of POFA 2012 states “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”. No ‘period of time’ parked mentioned only the date and time of issue. This is a clear breach of POFA 2012.
4, No Land Owner Authority
Elite Management (Midlands) Ltd is put to strict proof of full compliance with the BPA Code of Practice
As this operator does not have proprietary interest in the land then I require that they produce an un-redacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).
Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.
Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).
Paragraph 7 of the BPA Code of Practice defines the mandatory requirements and I put this operator to strict proof of full compliance:
7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
7.3 The written authorisation must also set out:
a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d who has the responsibility for putting up and maintaining signs
5, No contract exists between the driver and Elite Management (Midlands) Ltd or the Land Owner
A number of designated spaces in the car park are allocated to the driver’s employer, as part of the rental agreement between the land lord and the driver’s employer. The driver was required to use the vehicle in the pursuit of their normal duties and as such they were allocated a car park space by their employer, in order that they could carry out these duties. I would also note that the vehicle was not for the sole use of the driver and allocated a space in order that other employees could make use of if required for the performance of their duties. Therefore the parking space was an ‘official’ bay not a personal one. Neither Elite Management (Midlands) Ltd nor the Land Owner/land lord had any part in the allocation of spaces, as it is the employer’s responsibility to allocate the spaces and to arrange the relevant permits for their employees. Therefore I submit that no contract exists between the driver and Elite Management (Midlands) Ltd or the land lord. The only contract that does exist is between the employer/tenant and the land lord. Therefore should the landlord wish to seek recompense for breach of contract I suggest they make representations to the employer/tenant
continued below

dadachu

continued from above

6, The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.
It is a requirement of BPA code of practice that ‘A standard form of entrance sign must be placed at the entrance to the parking area’ . No such entrance sign exists nor do any of the reasons listed of why this is impractical to do exist or apply to this car park. The signs in this car park are not clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.
There was neither contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.
In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:
http://imgur.com/a/AkMCN
In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.
Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:
http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg
This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.
Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.
It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.
This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:
''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''
From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.
The letters seem to be no larger than .40 font size going by this guide:
http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm
As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx
''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''
...and the same chart is reproduced here:
http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html
''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.
''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''
So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.
Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':
(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.
The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.
This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:
http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html
This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.
So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

7, The charge is a penalty.
The operator makes much of the Beavis case, yet they are well aware that the circumstances of the Beavis case were entirely different. Essentially, that case was about the abuse of a free, time-limited public car park where signage could be used to create a secondary contract arising from a relevant obligation and where there was a 'legitimate interest' flowing from the landowner, in charging more than could normally be pursued for trespass.
In this case, we have an authorised user using the car park appropriately; there has been no loss to the owner. While the courts might hold that a large charge might be appropriate in the case of a public car park, essentially as a deterrent, there is nothing in the case to suggest that a reasonable person would accept that a £90/£100 (or £60 if paid promptly) fine is a conscionable amount to be charged whilst an authorised employee, with a valid permit, is using the carpark legitimately at their place of employment.
Therefore, in this case GPEOL should still apply and any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair.
This charge is unconscionable and offends against the penalty rule which was 'plainly engaged' in the case of ParkingEye Ltd v Beavis
At the Supreme Court in Beavis, it was held at 14: ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty… ''
This is NOT a 'more complex' case by any stretch of the imagination. At 32 in the Beavis decision, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''
Therefore, any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental question is always whether the terms are fair:
http://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted
- Schedule 2: 'Consumer contract terms which may be regarded as unfair':
’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''
This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.
In this case the specific question is whether a reasonable person would agree to a term where parking in a place that they enjoy rights of way and easements and pay a significant rent for the privilege of peaceful enjoyment would also accept a further unknown/not agreed liability. I would suggest that a court would not accept this is reasonable and indeed my next appeal point shows that a Senior Circuit Judge in a 2016 appeal case supports my view.
This charge is incompatible with the rights under the lease - as decided by the Appeal case of 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016, which also held that the Beavis case does not apply to this sort of car park.
In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other 'legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question'. The true test was held to be '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'.
There can be no legitimate interest in punishing authorised parking, under the excuse of a 'parking' scheme where ostensibly - and as far as the landowner is concerned - the parking firm is contracted for the benefit of the leaseholders/landholders/tenants. It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' to issue a parking penalty for permitted parking by a driver who has legitimate business and rights to do so.
These rights supersede any signs, which are of no consequence except to deter rogue unwanted drivers from leaving their vehicles when they have no business on site. This is true of any residential or business car park where tenants/leaseholders (who may be individuals or businesses) enjoy legal 'rights of way' which extend to drivers permitted to load/unload. A third party cannot unilaterally alter the terms of a tenancy agreement or a lease, nor disregard easements and rights of way that prevail in such car parks (residential or industrial).
This question was tested recently in an Appeal case in June 2016. Please note this is an Appeal case, decided by a Senior Circuit Judge and as such, its findings on the definition of 'parking as opposed to loading' and the findings on leaseholder/permitted visitor/loading/delivering rights of way superseding parking signs, are persuasive on the lower courts.
Beavis did not deal with any of these matters - nor was it relevant to a 'permit' car park - but the following case I have provided, is relevant and the Judge even states that Beavis DOES NOT APPLY to this type of car park:
Appeal case at Oxford County Court, 'JOPSON V HOME GUARD SERVICES' case number: B9GF0A9E on 29th June 2016:
Sitting in Oxford County Court, Judge Charles Harris QC, found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats who parked in front of the communal entrance to unload furniture, rather than use her own parking space. After an initial appeal to the Independent Parking Committee was rejected, Home Guard Services sued Miss Jopson in the small claims court and won. Miss Jopson successfully appealed the case, her solicitors arguing that the charge was incompatible with the terms of the existing lease which also extended to certain rights for permitted visitors when loading/unloading. The Judge found that Laura Jopson and her fellow tenants (as well as people making deliveries or those dropping off children or disabled passengers) enjoy a right of way to the block’s entrance and that Home Guard Services’ regulations disregarded these rights. Home Guard Services were required to pay £2,000 towards the defendant's costs.
I also rely upon the Croydon Court decision in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016 (transcript attached as evidence for POPLA**).
District Judge Coonan dismissed the claim and refused leave to appeal, stating: ''I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.''

dadachu

Hi everyone has anyone had a chance to look a my first draft for POPLA appeal above ?
Any advice and guidance would be most appreciated.

Thanks

pappa_golf

http://www.bmpa.eu/companydata/Elite_Management_Midlands.html

dadachu

Bump for critique of my draft appeal to POPLA above thanks

The_Deep

GPEOL wont work since BEAVIS lost almost 2 years ago

What not even in "own space" and double dipping cases?