Parking charges for parking in my own space

Geoff1963

I can appreciate that the parking enforcement company would like identification on vehicles, so they can "invoice" those who have no right to park there ; and hence ensure the residents can exercise their rights.
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However, it is a big step to then say that the right to park there means the right to park "a suitably-identified vehicle" there,.The right should apply to any vehicle being used by the rights-holder, or anyone acting in any way for them ; even retrospectively.

Coupon-mad

bargepole wrote: »

I must disagree here.

There is no point in trying to hide behind non-compliant NTKs or POFA in a residential case, the whole point of this is primacy of contract (which should be the first and strongest point).

I parked MY car in MY space which is granted to me by MY lease, which is a contract that the operator is not a party to. They cannot, through permits or signage, vary the terms of my lease, or grant a right to park which I already have.

All the other stuff about Codes of Practice, legibility of signs, etc., are basically secondary to the main issue.

I would agree if it was a defence.

It's a POPLA appeal - so we must go with what will win.

Fruitcake wrote: »

Surely this is not relevant since the OP has admitted to the PPC that they are the driver?

Have they?

[Deleted User]

I defer to Coupon on all matters PoPLA. However, if this goes to litigation proper, I'd keep it very simple and defend in my name.

You can threaten to join the freeholder/Association etc but unfortunately that costs a court fee of £255.

The cheapest way to add the agent is to wait until you're sued and then defend with a counterclaim (part 20 CPR) via MCOL. You are permitted to join a third party in this way, counterclaim are not limited to suing the Claimant back. Since that costs £25 you might consider it worth a go....

Coupon-mad

I defer to Coupon on all matters PoPLA. However, if this goes to litigation proper, I'd keep it very simple and defend in my name.

100% agree, and with bargepole too, if it was a defence I would not say use the POFA. Not in this case.

But at POPLA we must do what will win the appeal, and 'no keeper liability' will win.

CEBJ

Here we go. I have revised my appeal letter and put it below. Thank you for your help, as ever.

The management company are currently appealing the charges on my behalf but Spring Parking have not replied. The window to appeal to POPLA for the charge in question closes tomorrow. I have contacted POPLA about extending it and will call tomorrow. If I am unable to do so, shall I just appeal tomorrow? Will this compromise my position in getting the management company to cancel the charges.

Grateful for your comments on this issue and the letter below.




1. 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.

This charge is incompatible with my right to free and unfettered enjoyment of the car parking space in which the charge was levied. The lease for the flat demises in clause 1.2(vi) ‘‘a right to use for the purpose of parking private motor cars only the parking space edged green on the plan.’ In attachments 1, 2 and 3, I provide the cover page of the lease, clause 2(vi) and the plan which clearly makes the space in question as demised to XXXXXX, the flat which for which I hold the lease. I therefore invoke my right to ‘peaceably hold and enjoy the demised flat for the term hereby granted without any interruption by the Lessor or any person lawfully claiming credit for,’ as set out in Clause 4.1 of the contract, shown in attachment 4 and make the clear case that the charge in question is incompatible with this lease.

To clearly demonstrate how the primacy of contract for the right to enjoy my parking space over any charge issued by private parking companies, I refer you to the cases of Jopson - Homeguard, Pace - Mr N and Saeed – Plustrade, which are the authority for the proposition that a parking company cannot override a resident’s pre-existing parking rights. It was held in those cases that parking restrictions including the introduction of a permit system and parking charges which caused detriment to residents was in breach of the principle that ‘a grantor shall not derogate from his grant.’

Spring Parking may invoke the case of Beavis – Parking Eye to assert their right to issue parking charges on private property even to residents of said property. As outlined below, this assertion is simply does not hold, and serves only to demonstrate the primacy of contract of the lease between lessee and lessor and the precedence of one’s right to enjoy one’s parking space as set out in the lease between lease and lessor over third party interventions by private parking companies.

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 residents for parking in their own space, 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 a resident to park in his own space.

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 car park where residents enjoy unfettered ‘right of way’. 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.

This question was tested recently in the Jopson - Homeguard Appeal case in June 2016 (transcript attached as evidence for POPLA*).

Beavis did not deal with the case of residents parking in their own spaces, nor to 'permit' car parks at all - but the following case and transcript 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 park 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.’

I have clearly set out above the terms through which I may enjoy free and unfettered pleasure of the parking space in question. I have demonstrated the validity of this assertion through a case law which clearly establishes the primacy of this contract over third party intervention by the private parking company in question.

2. No evidence of Landowner Authority - the operator put to strict proof of full compliance with the BPA Code of Practice, and demonstrated to be acting against the request of the management company.

As this operator does not have proprietary interest in the land - and yet the driver does, as the rightful tenant - then I require that the operators produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details 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 in small print 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 CoP 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

e the definition of the services provided by each party to the agreement’

Therefore, I call on Spring Parking to provide evidence that their contract with the management company of the property in question gives them the legally required authority to impede on my right to free and unfettered access to my parking space.

Moreover, in attachment 5, I attach an email in which the [unnamed], director of the management company requests the cancellation of the charge, as well as others in question, clearly demonstrating that Spring Parking is not acting on its behalf. While Spring Parking may invoke their discretion on cancelling charges, to uphold them in this case is 'out of all proportion to any legitimate interest' as set out in the Beavis case, namely to protect residents’ ‘right of way’ to the car park, and therefore would contravene my right to free and unfettered access to my parking space.

3. The signs in this car park are not prominent, clear or legible from all parking spaces and do not therefore constitute a valid contract between keeper and parking company, let alone one which could take precedence over the primacy of contract between lessee and lessor to enjoy free and unfettered access to the space in question.

From the BPA CoP section B – Operational Requirements in England and Wales
From 18.1

‘You must use signs to make it easy for them (drivers) to find out what your terms and conditions are.’

In the BPA CoP 18.3
‘Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.’

The two signs in this car park are small, inconspicuous and illegible from a driver’s seat. The one shown in attachment 6 is placed high up out of the way in a dark car park, with poor contrast between the sign and the wall it is mounted on. The second shown in attachment 7 is at the entrance to the parkway but is not fit for purpose: it is placed low down to the ground in front of a bush, and a lamp which is so bright that it obscures the sign altogether rather than illuminating the text, as shown in attachment 8. They use very small font making them impossible to read. Being placed in these awkward positions and having unintelligible text they clearly are in breach of the BPA’s Code of Practice, by effectively hiding the terms and conditions from drivers.

Attachment 9 shows the nearest sign from the driver’s seat in the bay in question, the inconspicuous and unintelligible sign above also isn’t legible, conspicuous or complying with the Code of Practice.

There was no 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 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:

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: [link]
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 with no clear order and indeed obscured in the case of the sign at the entrance to the car park. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of contrasting 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. Furthermore the largest font on the sign is that of the 'Spring Parking' logo which conversely does have a strong contrast between the white text and the blue background, indicating a deliberate intent in distracting the driver’s eyes from the contract and its terms.

The signs quite simply do not fulfil the obligation to issue 'adequate notice of the parking charge,' as set out in the POFA Schedule 4 and the BPA Code of Practice. 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 operator’s 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.

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here: [link]

''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 on this page: [link]

''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 buried in far too crowded small print, is woefully inadequate in this car park. Given that letters look smaller when high up on a wall, 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 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: [link]

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.

Conclusion

I am appealing this charge on three grounds:

1) that any contract between myself and Spring Parking infringes my right to enjoy free and unfettered access to the parking space in question as there is primacy of contract between lessor and lessee over the space;

2) that Spring Parking does not have the authority of the landowner and is invited to demonstrate it through its contract with the management company, nor its approval to pursue this case as demonstrated by the intervention of the director of the management company, therefore rendering this charge 'out of all proportion to any legitimate interest,' namely the protection of residents’ ‘right of way’ to the car park.

3) That should any legitimate contract be presumed to exist with precedence over the primacy of contract between lessee and lessor, it is rendered invalid by the insufficient notice provided by the woefully inadequate signage in the car park in question.

I have provided clear evidence to support all three points, and have invited Spring Parking to provide their own evidence to challenge my rightful assertions.

The_Deep

Loadsofchildren123 wrote: »

How, Deep? Under the court rules, you have to apply to join a party to proceedings and the application fee is £255. Happy to be corrected, could you elaborate?

We are at cross purposes. I assumed that "join" ment "become a member of".

The_Deep

I agree with Jonersh and Bargepole and think that CM is barking up the wrong tree. IMO post 27 sucks.

This has nothing to do with parking, PoPLA, or POFA. This is all about property, leasehold rights to quiet enjoyment, and trespass. Their actions may in fact breach the Landlord and Tenants Acts.

If a PPC attempts to restrict your legal rights get it in front of a judge and counterclaim to trespass or invasion of privacy. Hire Barrister Roger Davey and make their eyes water.

http://www.consumeractiongroup.co.uk/forum/showthread.php?377246-UKPC-liable-for-trespass-**SUCCESS**

Umkomaas

If a PPC attempts to restrict your legal rights get it in front of a judge and counterclaim to trespass or invasion of privacy. Hire Barrister Roger Davey and make their eyes water.

http://www.consumeractiongroup.co.uk/forum/showthread.php?377246-UKPC-liable-for-trespass-**SUCCESS**

Unless he'll do it pro bono, the most recoverable amount of his fees would be £50 in the small claims court.

I'm not sure it would be the PPC's eyes that would be watering!

CEBJ

There's clearly divided opinions here...

I have built my claim on my right to enjoyment, as well as SP's failure to demonstrate clear signage. Unfortunately, I have admitted liability so can't pursue that angle. Are there any other arguments I can include to make this case more likely to succeed at POPLA?

[Deleted User]

Unfortunately, I have admitted liability

Not quite. You admitted parking. That's not the same at all. Now keep it simple, run primacy of contract and off you go...