Incorrect location postcode on PCN

apple_icon

I live in an Apartment in a city centre.

The same Parking Operator has issued 11 PCNs to my vehicle over the last 11 months. The first one has just come to a court hearing (the date for a response is still a week away).

Every one of these PCNs has the location as an abbreviation of the building name and every one shows the postcode of the building as referring to a street about 50 yards away from the building. The postcode of the building and the postcode of the street are different.

I've contacted the Local Council via a Freedom of Information request to confirm that it is the Council that manages the street postcode.

I suppose my question is "Which of the address descriptions is correct?"

PoFA Schedule 4 Section 3(1(a) and 1(b) define 'relevant land' - but is the relevant land described within the title or the postcode?

D_P_Dance

Please read the newbies, other "own dpace" threads and these

https://forums.landlordzone.co.uk/forum/residential-letting-questions/1053920-private-parking-companies

http://parking-prankster.blogspot.com/2016/11/residential-parking.html

https://www.consumeractiongroup.co.uk/topic/324523-ukpc-liable-for-trespass-success/

and complain to your MP.

Coupon-mad

I don't think any Judge is going to like a technical defence about post codes, from a person who lives at the apartments and was the person who parked the car and knows they received PCNs there.  Forget that.

If you have a hearing coming up, then you put in a defence already ages ago, when you got the claim form.  Surely they haven't gone and filed separate claims for groups of PCNs because if they have, then read threads you find when you search for Henderson estoppel.  That will help with any subsequent ones.

Why are you getting PCNs?  Are these in your own allocated bay or what?

Are you a tenant or a leasehold owner?

What does your agreement or lease say about parking, vehicular access, rights of way or peaceful enjoyment of the property?

What exactly did your DEFENCE say, word for word please?

Have you received their WS and evidence, what is their case and who are the parking firm and/or solicitor?

D_P_Dance

Your winning defence will be on primacy of contract if applicable, forget about postcodes.  

apple_icon

OK - I've been convinced that my earlier argument regarding postcodes is not worth pursuing.

I'll start a new thread under Primacy of Contract but first let me put this in context by answering some of the points above:

1 - I have not submitted a defence. The Managing Agent has 'kindly' persuaded the Operator to rescind several of the tickets. The PCN relating to this Money Claim has somehow slipped throught the net but needs to be addressed.

2 - I am a Leaseholder in a demised Apartment with EXCLUSIVE USE of Car Park Space no.XX

3 - The lease is quite specific, it seems to me, on each of these subjects - I will reproduce them on the next thread in order to keep it all together

4 - No, I have received no WS or evidence (other than the Notice to Keeper and various letters reminding me to pay the Parking Charge.

The parking firm is Car Park Management Services (CPMS) Ltd (Manchester office) and the solicitors are BW Legal of Leeds. At one stage I was also being pursued by Zenith Collections of Manchester and Debt Recovery Plus of Manchester

The wording of the claim is:

"The Claim is for the sum of £107.18 being due from the defendant in respect of a Parking Charge Notice (PCN) for a contractual breach which occurred on 08/10/2020 in the private car park/land at

in relation to a BMW 318CI

registration mark XXXXXX.

The PCN was issued as the driver failed to comply with the terms and conditions, as displayed.

Despite demands, the charge remains unpaid.

The Claim also includes Statutory interest pursuant to Section 69 of the County Courts Act 1984 at a rate of 8% per annum (a daily rate of £0.02) from 08/10/2020 to 01/10/2021 being an amount of £7.18.

The Claimant also claims £60.00 recovery costs as set out in the Terms and Conditions and in the ATA AoS Code of Practice."

There was a PCN on the windsceen of the vehicle. The PCN reason for the ticket was "No permit displayed". Each of the letters chasing the PCN 'fine' states the same reason. The photo evidence that they produced to the Managing Agent shows only the rear of the vehicle and not the windscreen. There may be other evidence which they have not yet provided.

I asked the Managing Agent to rescind the PCN as the Managing Agent had not, at that time, issued a permit to me despite being reminded several times (by email).

However, the response that I received was that the PCN would not be rescinded as "the vehicle was not parked in a valid bay".

I responded to the Managing Agent, citing the circumstances of Jopson v Homeguard as the vehicle was parked in identical circumstances (I was delivering a heavy item to my Apartment and the vehicle was parked adjacent to the Car Park entry door which is within the gated car park (accessed by a key fob)).

I will start the "Primacy of Contract" thread later this evening and include the text of the various Lease clauses as requested.

davemcc

The Parking Signs were put up by the operator who is contracted by the Management Company. The wording on the Parking Signs is;

"ATTENTION

PRIVATE LAND-TERMS AND CONDITIONS APPLY

THIS SITE IS MANAGED AND OPERATED BY

XXXX XXX XXX LTD

PARKING CHARGE OF £100

PAYABLE WITHIN 28 DAYS

Terms & Conditions are shown below

PERMIT HOLDERS ONLY

PERMITS MUST BE CLEARLY DISPLAYED ON DASHBOARD/WINDSCREEN

By parking or remaining on this land

You the driver accept liability to pay the Parking Charge for any failure to comply with the Terms and

Conditions contained within this sign.

You will be liable for additional parking charges for each and every subsequent 24-hour period

(or part thereof) that the vehicle remains or if it returns at any time.

We are not liable for any loss or damage howsoever caused to any person or property while on

this site save under any statutory provisions.

Failure to comply with the terms and conditions may result in the vehicle's keeper details being

requested from the DVLA. Enforcement action may incur additional costs that will be added to the

value of the parking charge and for which you will be liable on an indemnity basis.

Automated payment line XXXX XXX XXXX

IMAGES OF VEHICLES INCLUDING VEHICLE NUMBER PLATE WILL BE OBTAINED IF YOU

BREACH THE TERMS OF PARKING TO PURSUE THE DRIVER OR KEEPER FOR A PARKING

CHARGE. IMAGES MAY ALSO BE TAKEN AND A PARKING CHARGE NOTICE ISSUED BY POST"

Johnersh

So (subject to what the lease says) here are a few thoughts.. 

1. you have exclusive title (via the lease) to use a parking bay

2. The ppc are purporting to license parking (without your permission) on a per 24 hrs basis.

3. Are purporting to claim entitlement to licence parking to you notwithstanding the preexisting right

4. The contract is impossible to perform if enforcement commences prior to the supply of a permit, which is their obligation

5. Even when a permit was supplied, it is for them to prove that it was not displayed. A rear window photo is useless when the sign refers to the display of permits in the windscreen.  All photos should be made available. 

6. The sign refers to £100 and refers to indemnification of their enforcement costs. It is therefore for them to prove the actual costs incurred so that they can be paid, not a generic sum. That £60 would only be enforceable as a sum in liquidated damages if expressly stated on the sign. 

Coupon-mad

What is the issue date of the claim form and have you acknowledged it?

davemcc

Thanks - I'll start another thread "Primacy of Contract"

Umkomaas

davemcc said:

Thanks - I'll start another thread "Primacy of Contract"

This is confusing. @davemcc are you the same person as @apple_icon, the originator of this thread?

If you are, there's no need for a new thread, you can continue on this one, otherwise there will be repeat questions and a need for repeat answers on the new one and there will be continuing responses on this one. It will become a bit of a mess. 

davemcc

At last, I've been able to spend some time on this.

Here is my basis of defence.

Most (all) of this is compiled from contributions from various forumites - I than you for this.

Everything from para 11 and on to the end is a straight copy of the Defence template.

Obviously everything before para 1 will be changed ...

Where reference is made to page numbers, the defence will be linked and will include the relevant documents

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

(full name of parking firm, not the solicitor!) 

(Claimant) 

- and -  

Defendant’s name from N1 claim (can’t be changed to someone else now)                        

 (Defendant)

____________________

DEFENCE

____________________

1.         The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

The facts as known to the Defendant:

2.         It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied.

It is admitted that the Defendant was the driver on the day of the incident. 

3.         I am a Leaseholder in The Met Apartments Dale Street Buildings 53-57 Dale Street Manchester M1 2BL. This Lease is registered under title number MAN103820 with the Land Registry under a Deed of Covenant dated 24 March 2017.

My apartment is number 627 on the 6th Floor (Particulars Clause 1.2 page number 2 ‘Lease’ document dated 30 November 2007). The apartment is described in the Particulars and defined in The First Schedule Part 1 “The Property” (page 12) and is shown within the Lease document in drawing L0005_Sixth_6.27 titled ‘Sixth Floor Demise Plan – Apartment 6.27’

My Car Parking Space is number 45 on the Upper Basement Level (Particulars Clause 1.5 page number 2 ‘Lease’ document dated 30 November 2007). The Car Parking Space is described in the Particulars and defined in The First Schedule Part 1 “The Property” (page 12) and is shown within the Lease document in drawing L0001/ A3 / H(-)_145 titled ‘CARPARKINGDEMISEDSPACE 45’

The Landlord has title to the Freehold of the building under title number GM769427. My apartment and Car Parking Space is itemised within Section C: Charges Register “Schedule of notices of leases” under item 130 (pages 14 of 21 and 15 of 21) note: the Schedule of charges refers to Car Parking Space 53 on the supplementary plan to the title plan. At some time the Car Parking Spaces were re-numbered. The location within the Upper Basement Level of Car Parking Space 53 on the supplementary plan is the same location as Car Parking Space 45 on the Lease document in drawing L0001/ A3 / H(-)_145 titled ‘CARPARKINGDEMISEDSPACE 45’signage

My rights as a Tenant in this building are set out in paragraph 5 of the Lease (page 9) DEMISE.

The First Schedule Part II “Rights granted to the Tenant” (page 14) paragraph 6 sets out my right to the exclusive use of the Car Parking Space

My right to Quiet Enjoyment of the Property is set out in The Fourth Schedule Landlord’s Covenants paragraph 2 (page 43)

The Fifth Schedule General Provisions paragraph 5 Contracts (Rights of Third Parties) Act 1999 states “The parties confirm that notwithstanding any other provisions of this Lease this Lease shall not and shall not purport to confer on any third party any benefit or any right to enforce any term of this Lease pursuant to the Contracts (Rights of Third Parties) Act 1999”

4.         The Claimant is purporting to licence parking without my permission on a per 24 hours basis

5.         The Claimant is purporting to claim entitlement to licence parking to me notwithstanding the pre-existing right to park

6.         The contract is impossible to perform if enforcement commences prior to the supply of a permit, which is their obligation (email from *Managing Agent*)

7.         Even when a permit was supplied, it is for the Claimant to prove that it was not displayed. A rear window photograph is of no use when the signage refers to the display of permits in the windscreen. All photographs should be made available

8.         As a Leaseholder I have a pre-existing right to park in my demised Car Parking Space. Signage erected by a the Claimant who is not a party to the lease is irrelevant to the terms of the Lease.

9.         The Claimant has not demonstrated any right to impose unilateral terms which vary the terms of the Lease. Any such variation to the Lease must be 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

10.       The Claimant has posted signage in the Car Park. The signage at this location fails to create any contractual liability due to the failure to comply with the provisions of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. The purported contract created by the signage is a ‘distance contract’ as defined in section 5 of the Regulations, and is therefore subject to the mandatory requirements set out in section 13, relating to the statutory information which must be provided by the Claimant.

The Regulations state, at 13(1)(a), that the information listed in Schedule 2 must be given or made available to the consumer in a clear and comprehensible manner. The Claimant’s notice fails to comply with various clauses of Schedule 2, as follows:

(c) it fails to state the geographical address at which the trader is established

(d) it fails to state where the trader is acting on behalf of another trader, the geographical address and identity of that other trader;

(e) it fails to state if different from the address provided in accordance with paragraph (c), the geographical address of the place of business of the trader, and, where the trader acts on behalf of another trader, the geographical address of the place of business of that other trader, where the consumer can address any complaints

++++++++++++++++++++++++++++++++++++++

DUE TO THE LENGTH of the defence, this post cannot be accommodated in it's entireity. 

The remainder of the defence is a direct copy of the 'boilerplate' defence in the thread and is reproduced below in the next entry