Residents parking - UKCPM - Claim Form

Loadsofchildren123

pogo88 wrote: »

Hi Loadsofchildren,

Yes, in the definitions sections of my lease it states:

"Car Park" means the basement and ground floor car parks (subject to variation from time to time or
at any time throughout the Term in accordance with the provisions of this Lease) forming part of the
Development

Although it does also state that "Development regulations" must also be reasonable. I suppose what "reasonable" is can be quite subjective.

So the car park forms part of the "Development" for the purposes of making Development Regulations. They'll rely on this clause to argue that they are entitled to bring in a PPC and impose it on you. You'll argue that this clause doesn't entitle them to do that for all sorts of reasons - notice has to be given properly, they have no power to force a third party contractual relationship on you, they can't under the lease levy any charge against you other than what's in the lease (ground rent/service charge), etc. The technical arguments for this are all set out in a thread by hairray, please have a look at that one before going any further.


If you gave your numberplate to the PPC it's also reasonable to assume that they have some sort of residents' "white list".


They are arguing that they have a contract with the PPC but it's not in writing. It can still be a contract, but its terms need to be clear. I very much doubt there's nothing in writing, that seems odd, but it doesn't mean there is no contract. What ATA is your PPC a member of? The BPA CoP definitely requires a written contract with the PPC, not sure about the IPC one.

pogo88

Thanks Bargepole and LoC for your help and feedback. I am re-writing my defence in the format that Bargepole has suggested and will post this up later tonight.

LoC, thanks for referring me to the thread by hairray. I'll be sure to include some of these arguments as part of my case. To answer you question re the trade body to which UKCPM are a member of, I believe they are a member of IPC, but also hold a corporate BPA membership. I have gone out again to my managing agent to try and get hold of the formal agreement put in place when they brought in UKCPM. So far all I have is an email saying they confirm they gave instructions to UK CPM to manage the car park area within my residential estate.

Thanks again
Pogo

Castle

pogo88 wrote: »

I have gone out again to my managing agent to try and get hold of the formal agreement put in place when they brought in UKCPM. So far all I have is an email saying they confirm they gave instructions to UK CPM to manage the car park area within my residential estate.

The IPC's code of practice requires them under section 1.1 of Part B to have written authority from the landowner.

pogo88

Hi All,

I have re-written my defence as follows. Many thanks to Bargepole for providing me with a more concise template which I used as a basis for this.

IN THE COUNTY COURT
Claim No.:
Between
[UK CAR PARK MANAGEMENT LTD] (Claimant)

-and-

[NAME] (Defendant)


__________
DEFENCE
__________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim on the N1 Claim Form refer to “Parking Charges” incurred on XX/2017 and XX/2017. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state “The Defendant was driving the vehicle and/or is the keeper of the vehicle”, which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

3. The Particulars refer to the material location as ‘ADDRESS’. The Defendant has, since XXX/2015, held legal title under the terms of a lease, to Flat No. XX at that location. At some point in 2016 the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

4. The underground car parking area contains allocated parking spaces demised to some residents, of which Parking Bay XX was allocated for the exclusive use of the Defendant under the terms of the Defendant’s lease as stated at para. XX of the XXth Schedule. Entry to the underground parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

5. Under the terms of the Defendant’s lease, a number of references are made to the conditions of parking motor vehicles. At para. XX of part XX of the XXth schedule, it states that the Lessee’s parking space must only be used for parking a private, roadworthy and taxed motor vehicle not exceeding three tonnes of gross laden weight. At para. XX, part XX of the XXth schedule, it states that any high sided vans, boat, lorry, commercial vehicles, trailer, caravan or horsebox is not allowed to be parked on the development at any time. There are, however, no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

6. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant’s signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

7. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.
8. The Defendant, by way of courtesy, registered the details of the Defendant’s vehicle with the managing agent of the development on XX/2016. It would be reasonable to assume the Claimant would have been able to refer to this information during the Defendant’s initial appeal with the Claimant.
9. The Claimant may point to para. XX of part X of the XXth Schedule within the Defendant’s lease which states the Defendant agrees to comply with any “Development Regulations” which may be in force from time to time. However, as stated in para. XX.XX of the Defendant’s lease, any variance to the “Development Regulations” should be for the preservation of the amenities or for the general convenience of the occupiers of the dwellings. In any event, any new “regulations” amount to a variation of the lease and therefore must be executed in writing pursuant to section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. A variation of the lease cannot be entered into either by notification being posted through my letterbox by UKCPM or by signage being installed by UKCPM

10. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant’s position that no such breach occurred in this case, because there was no valid contract, and also because the ‘legitimate interest’ in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

11. The Claimant, or their legal representatives, has added an additional sum of £120 to the original £200 parking charges, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £200 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

12. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14.

Statement of Truth

I believe that the facts stated in this Defence are true.

………………………………………………………. (Defendant)
………………………(Date)

pogo88

A few thoughts I had whilst writing this latest version of my defence, which I would be grateful for some advice on:

- I included point 8 in the defence as I wanted the judge to know that I had registered my vehicle details with the managing agent and confirmed the parking bay which it should be allocated to. Not sure if I should keep this in as it may allude to the fact that I have somehow acknowledged the parking conditions set by the PPC.

- Should I mention in my defence that the permit is actually visible in the photos taken by the PPC and that the contents of the permit could be visible from a different angle?

- I have, so far, not been given any written proof of any formal agreement from the landowner (or the managing agent for that matter) that gives the PPC authority to enforce the parking in the development. Do I need to include this in my defence? Or should I leave it out as I can't be sure it does not exist?

pogo88

Hello Good people of MSE,

I was just wondering if anyone had any other feedback or advice regarding my defence draft? Do you think it is ok to submit as per above?

Thanks
Pogo

Loadsofchildren123

I think phrase it with two alternatives. Your first argument is that there was no contract between you and the Claimant, because you already had the parking rights granted to you by your lease. The second argument is that if there is a contract, you complied with it by parking in your designated space and displaying your permit - that's where you get in the fact that from a certain angle it appears partially obscured but if one approached the car and looked properly then all relevant parts of it could be seen and it therefore was properly displayed.


It's important in a defence that you make clear what is admitted, what is denied and what you put the Claimant to full proof of. And you "aver" a fact when you claim it. So you admit being parked where they said you were parked, and when they say you were parked. You aver that you already had parking rights pursuant to your lease and the Claimant, nor the freeholder/MC has the right to interfere with those rights. Even if that were not the case, you aver that you were parked within the Claimant's t&cs.


You state the points quite briefly here and then expand on them in your WS.

pogo88

Thanks LoC,

So if I amended one of the points to read:

6. The Defendant avers full compliance to all parking terms and conditions granted by the lease, at all material times. The erection of the Claimant’s signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct and the Claimant is put to full proof.

I am claiming to have parked in full compliance of the conditions setout within my lease and I have put the emphasis of the claimant to prove they had a legally binding contract that allows them to impose these parking charges on residents?

Sorry if it seems to be a silly question, I have zero legal background of any sort and the language used is quite alien to me.

Thanks
Pogo

Loadsofchildren123

Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct and the Claimant is put to full proof that any contract existed between him/her and the Claimant because (s)he already had rights to park pursuant to the lease.

Further, and in the alternative, even if there were a contract between the Claimant and the Defendant, the Defendant denies that he breached its terms in any manner and puts the Claimant to full proof thereof. [then you deal in your WS with the fact that you displayed your permit, you did so not in acceptance of the Claimant's authority but for convenience, that it was all visible but they took photos deliberately designed to make it appear that it was partially obscured. Furthermore, even if it was partially obscured, you had provided your car registration when you got the permit, so the C could easily have checked that a permit had been issued in respect of your vehicle.

Loadsofchildren123

Those are two distinct points. Firstly, no contract. Secondly, if there was a contract, I didn't breach it.