PCN on demised parking space

Car1980

Add that you are now removing any implied access to the land.

You'll get a templated fob-off, but I'm guessing it took a couple of hours to formulate that (£48 worth of time). Keep a note of that in case you need it later.

Car1980

Indeed even having to display a permit is arguably a step too far, but it is also true that the claimant will argue that the o/p has been doing that for some time already, without taking issue.

Yes. they like to argue that. But you obviously displayed it as a courtesy, before you researched the unlawfulness behind the entire scheme.

polonium

UKPCM rejected my appeal despite all the grounds given… what are the chances I will win the independent appeal? What if it goes to trial?

Coupon-mad

You can try IAS but it's not impartial and no paying if you lose that farce dressed up as an appeals service!

@cooldude255220 might suggest wording for an IAS appeal. You could cite the Duchess of Bedford House 2023 case law.

polonium

I need to draft a response. Would someone be so kind to look over what I wrote in my letter (posted in earlier comment). @cooldude255220 if you are available I would be very appreciate.

cooldude255220

https://forums.moneysavingexpert.com/discussion/comment/82038023#Comment_82038023

@polonium

Your second ground is labelled ground four.

And there are a few missing letters throughout, but I'm not sure if that's a product of redaction?

I have a better understanding of POFA/CoP than leaseholder cases, so others may be better-placed to assist. But your appeal reads well to me (with the caveat that I haven't seen the documents to which you refer throughout).

Coupon-mad

Cite the Duchess of Bedford House 2023 case law. Search the forum for a paragraph I have written for a defence this year about that case. Copy that wording.

Also cite the IPC Code of Practice regarding not introducing restrictions that override the existing rights enjoyed by residents under their lease.

polonium

Made the appeal and now they responded. Any feedback welcomed and would be much appreciated. I put in BOLD what I thought are the key info. Thank you!

The Operator Made The Following Comments...

The appellant has parked without having a valid permit for the relevant vehicle on display. 

The appellant has parked without clearly displaying a valid UK CPM parking permit. The appellant has parked within clear view of our sign and there is clear signage throughout the car park. This can be seen in the attached document '50971215'.

Signage clearly states “A VALID UK CPM PERMIT MUST BE CLEARLY DISPLAYED IN THE FRONT WINDSCREEN AT ALL TIMES". 

It is the driver's responsibility to ensure a valid CPM parking permit is clearly and securely displayed in clear sight within the windscreen of the vehicle, prior to parking within a restricted area. 

The Registered Keeper did not name the Driver, therefore, as we have fully complied with Schedule 4 of PoFA 2012, we are holding the Registered Keeper liable for this PCN.

We have carefully reviewed the representations made, together with the documents and evidence provided. Having done so, we are satisfied that the Parking Charge Notice was issued correctly and that the charge remains payable.

Our response to the points raised is set out below.

1. Demised Parking Space and Authority to Park

You state that Parking Space No. 5 is demised to the leaseholder and that the vehicle was authorised to park there. We acknowledge that the leaseholder may have rights relating to the use of Parking Space No. 5. However, the existence of a right to park does not automatically exempt a vehicle from complying with the parking management arrangements implemented at the development. The parking control scheme has been introduced for the benefit of residents and occupiers and applies throughout the site. Residents and their authorised visitors are required to comply with the scheme's operational requirements, including the display of a valid permit where required by the prominently displayed terms and conditions. The issue of the PCN was not based on whether the vehicle had permission from the leaseholder to be present, but on the vehicle's failure to comply with the parking conditions in force at the location. Accordingly, authorisation from a resident or leaseholder does not, of itself, invalidate a Parking Charge Notice issued for breach of the parking terms and conditions.

2. Landowner Authority

You contend that the operator lacks authority over Parking Space No. 5 and therefore cannot issue Parking Charge Notices in relation to that space. We do not agree. The operator acts pursuant to a written agreement authorising the management and enforcement of parking controls at the development. The operator is not required to provide a copy of its commercial agreement to motorists during the appeals process. The management company responsible for the development has instructed the implementation and operation of the parking control scheme. The operator's authority derives from that appointment and extends to the enforcement of the site's parking regulations. The fact that a resident or leaseholder enjoys rights in relation to a parking space does not prevent the lawful implementation of a parking management scheme intended to regulate parking and identify authorised vehicles. Furthermore, the Code of Practice requires operators to possess appropriate authority to manage the land. We are satisfied that such authority exists and that the requirements of the Code have been met.

3. Contractual Liability

You argue that no contract could arise because the leaseholder already possesses parking rights and therefore receives no consideration. The Parking Charge Notice was not issued as a charge for the grant of parking rights. Rather, it was issued following a breach of the parking terms and conditions displayed on site. The contractual arrangement relied upon by the operator is between the driver and the parking operator when a vehicle is parked on land subject to clearly displayed parking conditions. Those conditions include the requirement to display a valid permit where applicable. By parking and remaining on the land, the driver accepted the terms displayed on the signage. Failure to comply with those terms resulted in the Parking Charge Notice being issued. The existence of separate leasehold rights does not prevent the operation of a parking management scheme nor automatically exempt a motorist from compliance with the site's parking regulations.

4. Leasehold Rights and Cited Authorities

You refer to the principle of primacy of contract and rely upon the decisions in Saeed v Plustrade Ltd, Jopson v Homeguard Services Ltd and Pace Recovery & Storage v Mr N. We have considered these submissions but do not accept that the authorities cited determine the outcome of this matter. Each case turns upon its own facts and the specific wording of the relevant lease or tenancy agreement. None of the cases cited establish a general principle that residents or authorised vehicles are permanently exempt from complying with reasonable parking management measures implemented at residential developments. The authorities relied upon concern materially different factual circumstances and do not automatically invalidate permit schemes or parking control arrangements introduced for the benefit of residents. Furthermore, where a parking scheme serves a legitimate management function and does not remove the underlying right to park, compliance requirements such as permit display may constitute reasonable administrative measures rather than a derogation from grant. For these reasons, we do not accept that the authorities cited render the Parking Charge Notice invalid.

5. Alleged Presence of a Permit

You state that a valid permit was present inside the vehicle but was not displayed on the windscreen. The requirement under the parking scheme is for permits to be displayed in the prescribed manner so that they can be readily verified by a parking attendant during routine patrols. The contemporaneous photographic evidence obtained at the time of issue demonstrates that no valid permit was displayed in accordance with the parking conditions. While you have subsequently provided evidence which you contend shows a permit elsewhere within the vehicle, this does not alter the fact that the permit was not displayed as required at the time of the inspection. It remains the responsibility of the motorist to ensure that any permit is clearly and continuously displayed in accordance with the parking terms and conditions.

Coupon-mad

Didn't you cite the Duchess of Bedford House 2023 case law that I advised?

Put it in now. It's binding case law.

James_Poisson

Honestly where do you start with that heap of garbage made up for their benefit and greed.

They can make a contract with Mr Softy if they like that does not mean it has any hold over anyone.

They state that the parking control scheme has been introduced for the benefit of residents and occupiers, well in your case it clearly hasn't, and that is what a fair appeal would look at and cancel.

They say the operator is not required to provide a copy of its commercial agreement to motorists during the appeals process, you are not "a motorist" you are the leaseholder of the land they are trying to run a business on without permission, in which case that commercial agreement is yours to see or they stop!