New parking regulations at home...

dazster · 18 February 2016 at 3:26PM

Oh I see, no mileage in that direction then.

Daniel_san · 18 February 2016 at 3:36PM

No, but thank you. It's more a principal. Between the managing agent and the sole director of the RTM company, without any AGM other meeting or consultation with any of the 100 owners of apartments in the building, such nonsense has been introduced and if you don't like it, tough, apparently...

Coupon-mad · 18 February 2016 at 4:47PM

Daniel_san wrote: »

Still waiting on POPLA......but.....

In the meantime, I've got a new evidence pack for the latest round of appeals. I'm wondering your thoughts on this section which has been added to the latest pack

"First ground of their appeal is that we have no contract in place to enforce parking restrictions. However we would like to inform you that we have signed contract with the Management Agency at the location mentioned above Please find attached a copy of it in Section F. According to the AOS Code of Practice Clause 7.1 – If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.
However as we have written authorisation from the management company in place, we have the wright to carry out car park management service and patrol the land."

Coupled with a witness statement from my managing agents to say they have the right to pursue charges on the land etc etc, and a contract that states no such thing, says terms are on the reverse side, but that reverse side is not entered as part of the evidence bundle (and it's not for me to assume the terms contain sensitive info about how much of a kickback the management agent gets, oh nooo!)

Would appreciate any thoughts. My lease contract has no requirement for a permit.

This one I wrote this week might help:

http://forums.moneysavingexpert.com/showthread.php?p=70151384#post70151384

... it's actually a rebuttal to an evidence pack from UKPC and the very first paragraph covers the fact that a witness statement or agreement between two agents is not the same as showing authority flowing from the party with title in the land (landowner themselves).

It also has an attempt - by salmosalaris and myself - at a demolition of any similarity with the Beavis case and talks about unclear signs where the sum of the parking charge isn't in large lettering/prominent (unlike in Beavis).

Apart from the parts about UKPC's nortiness and the fact they were prepared to accept £15 in that case, the rest should all be stuff you can use and adapt in your latest rebuttals.

Daniel_san · 18 February 2016 at 5:05PM

Thanks CM, once again, you legend! I shall have a read when I get home in a few hours

Daniel_san · 18 February 2016 at 9:36PM

Needs a little more work I am sure, after I get food!
EDIT to add: bear in mind I am sending 1 email to rebut 5 POPLA appeals. I'm up to 20 now...

1. I am a resident and leaseholder. The lease contract with the land owner does NOT state a requirement to display a parking permit issued by UK Parking Solutions, or any other private parking company. Any changes to these terms would require my express written authorisation. The operator has failed to demonstrate a 'legitimate interest' in performance of the permit 'rules' foisted upon other residents yet expressly rejected by me (as shown in the attached pdf file of email dated 06 July 2015 10:30hrs). Unlike in the Beavis case, I cannot be considered to have accepted the terms.
2. Page 5, point 3, refers to their contract with the land owners agent. This contract is heavily redacted in some evidence bundles, including redaction of one of the parties the contract is with, so it’s impossible to verify as being valid. In other evidence bundles this document is readable but I contend this is not with the actual landowner and does not show that the signatory is an authorised agent of the landowner either. It certainly does not mean the managing agent has the right to alter or add additional terms over and above my original lease terms. It is an alleged 'agreement' between two agents but fails the strict requirements of the BPA Code of Practice for landowner contracts and does not show that any authority flows from the party with title in this land. Further, this section specifically points to the AOS Code of Practice Clause 7.1 stating that “However as we have written authorisation from the management company in place, we have the wright to carry out car park management service and patrol the land” but clause 7.1 also states that “In particular, it [meaning the written confirmation] must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges. The (sometimes heavily redacted) contract enclosed in the evidence pack states no such thing, but states that “This agreement incorporates the terms and conditions set out overleaf”. Without those terms and conditions being disclosed to me, how can I possibly agree to them? The elements of a contract are fundamental, as is evidence of breach, and neither exist here (unlike in Beavis). A contract must be “offered” for “consideration” and then “accepted” before it is deemed valid in the eyes of UK law. The operator has failed to demonstrate they have the proper authority and so I would request POPLA to uphold my appeal please.
3. The operator alleges trespass (page 6, point 4), but the land is not owned by them. The decision in Beavis v ParkingEye. 'As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass. This is because it lost nothing.' In the Beavis case ParkingEye did not argue that their charge was merely compensation for damages or loss, but this operator is trying to argue that it is a matter of trespass, which leaves them with no sum lawfully able to be pursued by a non-landowner party. The operator also alleges breach of contract terms, but no contract exists. The operator should decide which charge to pursue, as the 2 charges cannot co exist, as they are contradictory.
4. Unlike in the Beavis case, the signs here cannot be considered 'very prominent' and nor is the parking charge itself in large lettering and in any case I rejected the permit scheme as not fit for purpose, accepting no terms whatsoever. Without a contract being formed and without the £100 charge specifically being consented to by performance, this situation simply is not comparable with the Beavis case. As previously argued in my appeal, the landowner might at best, be able to allege trespass if vehicles are not allowed to be parked without a permit, but a third party without any assigned land rights or title cannot pursue damages for trespass.
5. If the operator is suggesting this was a 'breach' (rather than trespass) then the operator needed to either show that their disproportionate charge was not a penalty (meaning they would have had to demonstrate clear similarities with the Beavis findings) or alternatively, they had to show that the charge was based upon a GPEOL. They have done neither.
6. The car park is free to use for residents, has been so since it was built. Nobody suffered any loss in the 8 years prior to UKPS coming and placing their signage, so their GPEOL calculations cannot possibly be accurate. I repeat point 3 of my initial appeal “POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss”.
7. In response to point 4 “However the only way how our Operative can recognise a Residential vehicle is when a Residential Permit is Clearly Displayed on the dashboard”. This is not true. The car park can only be accessed with an electronic keyfob, which is required to open the entrance and exit gate. This keyfob is only available to residents. Unlike in the Beavis case, there is no reasonable cause nor justification for this permit scheme at all.
8. Page 14, point 3 states that “In this case the registered keeper has admitted to being the driver on the date of incident”. This is simply not true. My appeal was as the registered keeper of the vehicle, with no reference to who the driver may have been in any way whatsoever.
9. The witness statement from Stephanie Hughes of Warwick Estates Management, (page 21) point 2 is extremely misleading and ambiguous. Stephanie Hughes is not the landowner. Warwick Estates are not the land owner. Despite various references to say the operator has the permission of the landowner, there is no evidence of this here.
10. There is no offer to park for the general public.
11. There is no expectation of “turnover” of cars.
12. There is no time restriction placed on parking.
13. There is no promise to leave after a given time
14. UK Parking Solutions do not have any legal right to “offer” parking at this location. Parking is my RIGHT, under my lease contract which I willingly signed when purchasing the property.
15. In cases where it specifically mentions the vehicle not being in a marked parking bay, I point out that as no contract is formed with the parking company, their terms having being expressly rejected by me, their authority is unrecognised by me and my leasehold contract STILL does not require a permit to be displayed, so this scheme is STILL unenforceable. To force me to accept contract terms is unlawful. To tell me I cannot park in the car park specifically built for residents use only, as I have been doing for 8 years, would be a conflict with my lease and render the properly unfit for purpose, breach my right to peaceful enjoyment and effectively force me to move home.
16. Lastly, I do not have a permit anyway. Following my letter to Warwick Estates (attached), I was not issued with a permit, so cannot possibly be expected to display one.

EDIT to add: The attachment referred to in points 1 and 15, is the following email sent to my managing agent Warwick Estates:

"Following your letter dated 26th June 2015 with regards to the new parking enforcement at [location], I am writing to tell you that I do not want any permit sending to my flat. Additionally, please note the following, which shouldn’t come as a surprise to you.

I hereby opt out of the permit scheme on behalf of myself and my visitors. I do not recognise any authority of any private parking firm and did not want this scheme at all. Nor can it impede my established right to peaceful enjoyment. I will not be able to provide a definitive list of my visitors' cars of course but will expect any fake 'parking ticket' to be immediately cancelled if I subsequently point out that the car belonged to a visitor to my property.

My own VRNs which must now be immediately added to the 'white list' are: XXXX and XXXX.

This is effective from today; please immediately inform the parking firm and update the 'white list' accordingly as I am not part of this scheme".

Coupon-mad · 18 February 2016 at 10:15PM

Haven't read it yet but read and learn from these UKPS POPLA very recent losses and try to dodge this bullet:

http://forums.moneysavingexpert.com/showthread.php?p=70157645#post70157645

http://forums.moneysavingexpert.com/showthread.php?t=5411246

I assume they are both the same UKPS.

Daniel_san · 19 February 2016 at 12:01AM

Thanks CM. Reading now as I have to send this to POPLA tonight. Looks like the same UKPS to me!

Coupon-mad · 19 February 2016 at 12:42AM

Be careful and re-word this which suggests who parked:

To force me to accept contract terms is unlawful. To tell me I cannot park in the car park specifically built for residents use only, as I have been doing for 8 years,

Because people have been losing v UKPS a couple of times, I would make more of the fact this can only be deemed trespass at best as there is no contract between the driver of any vehicle using your cars and UKPS.

In fact the only 'contract' was made in the email between you and Warwick Estates in June where you offered your VRNs for a white list (exempt list) making it clear the permit scheme was not consented to. Warwick Estates did not disagree so their silence was deemed acceptance of the bargain you struck that day by offering your VRNs for the site white list.

Re the trespass argument, have a look at this one, I think you need to make more of what was said by the Judges in Beavis because POPLA have been turning appeals down and missing the point that in fact, the Beavis case assists appellants in cases of trespass:

http://forums.moneysavingexpert.com/showthread.php?p=70153351#post70153351

You need a version of that person's point where they say:

''The charge is extravagant, not commercially justifiable and not a genuine pre-estimate of loss''

The first paragraph there is vital IMHO because it makes it clear that there was nothing offered by the driver which could be deemed consideration or a promise to comply with any terms under any licence...and no offer nor consideration from the parking firm either = ergo, not a contractual matter. Not like the Beavis case.

Obviously change the name of the parking firm and any details that make no sense for your case, certainly include ALL the quotes from the Beavis decision which mention trespass - and after this bit:

The need to provide parking spaces for their commercial tenants’ prospective customers;
The desirability of that parking being free so as to attract customers;
The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers;
The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.''

...you will need a conclusion to say something like: The case of a vehicle parked on site with the full knowledge of Warwick Estates that it was an exempt vehicle which should have been on the 'white list' since June 2015, is clearly very different from the Beavis case. Where trespass is alleged, a third party parking firm has no locus to pursue a charge and even the landowner could only pursue nominal damages as the above citations from the Supreme Court confirm.

Do not copy anything from that link that comes beneath the words ''The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.'' because the OFT stuff is out of date and the lowest appeal point in that link makes no sense in your case.

By the way POPLA will be fine if you email this to them in the morning and ask them to add it to the case file. You don't have to try to squeeze it into the restricted word count on the Portal (a door which always closes early anyway). Email is best, attaching your rebuttal as a PDF and asking them to add it to the case file.

Daniel_san · 19 February 2016 at 1:05AM

Coupon-mad wrote: »

Be careful and re-word this which suggests who parked:

In fact the only 'contract' was made in the email between you and Warwick Estates in June where you offered your VRNs for a white list (exempt list) making it clear the permit scheme was not consented to. Warwick Estates did not disagree so their silence was deemed acceptance of the bargain you struck that day by offering your VRNs for the site white list.

Thank you, good point, well spotted!

WE responded to my email and told me they didn't have a "Whitelist", and they had no intention of creating one. They did, after further emails, agree to remove my parking space from the scheme on certain conditions, all of which I rejected after advice here from someone who suggested I tell them I was not inviting them to negotiate, I was TELLING them to whitelist my vehicles., but UKPS continued to issue PCN's to a vehicle in my space as they were when parked elsewhere in the car park.

Going through the rest now thank you.

I've been emailing them each time as using their portal with so many different numbers and passcodes is impossible!

Oh, incidentally, I noticed in one pdf evidence file there was an excerpt from an email from WE to UKPS which wished them good luck with these cases against me. Charming huh! :mad:

Daniel_san · 19 February 2016 at 1:26AM

Added this as a new point

3. The charge is extravagant, not commercially justifiable and not a genuine pre-estimate of loss
I now rebut UKPS evidence and take the opportunity to explain my position regarding the non-comparable (but useful in many respects) binding decision in ParkingEye Ltd v Beavis (“the Beavis case”). In the Beavis case, there was common ground between all before the court that the relationship between the parking company and Mr Beavis was contractual.
However, in this particular case, UKPS's allegation is clearly only related to alleged trespass and not a matter of contract at all. The driver promised nothing which can in law constitute valuable consideration and, for their part, UKPS provided no contractual offer or consideration, for the simple reason that UKPS argue that the driver had not been authorised to park under any licence nor right at all.

I refer POPLA to the following extracts from the Supreme Court’s judgement:

Paragraph 97: ParkingEye concedes that the £85 is payable upon a breach of contract, and that it is not a pre-estimate of damages. As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass...

Paragraph 107: ...it may fairly be said that in the absence of agreement on the charge, Mr Beavis would not have been liable to ParkingEye. He would have been liable to the landowner in tort for trespass, but that liability would have been limited to the occupation value of the parking space.

Paragraph 190: ...Mr Beavis...would have been a trespasser if he overstayed or failed to comply with its other conditions. But ParkingEye was not in possession of the car park, or capable of bringing proceedings in trespass. It had a mere right to control parking at the site - the right to permit or refuse others to park there on such conditions as it might stipulate. By promising ParkingEye not to overstay and to comply with its other conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have had, to enforce such conditions against him in contract...

...the question arises whether the Parking Charge is an unenforceable penalty. The quid pro quo provided by ParkingEye in return for Mr Beavis’s promise was the grant of permission to park for up to two hours in its discretion free of charge, on conditions. Each party thus gave the other valuable consideration.''

Furthermore, the Beavis Case concerned allowed parking and it was at a Retail Park and as such, the rationale behind that decision is not relevant here. I refer POPLA to Paragraphs 97 and 98 of the Supreme Court’s judgement:

''The notice at the entrance describes ParkingEye as being engaged to provide a “traffic space maximisation scheme”, which is an exact description of its function. In the agreed Statement of Facts and Issues, the parties state that “the predominant purpose of the parking charge was to deter motorists from overstaying”, and that the landowner’s objectives include the following:
The need to provide parking spaces for their commercial tenants’ prospective customers;
The desirability of that parking being free so as to attract customers;
The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers;
The related need to prevent ‘misuse’ of the parking for purposes unconnected with the tenants’ business, for example by commuters going to work or shoppers going to off-park premises; and
The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.''

The case of a vehicle parked on site with the full knowledge of Warwick Estates that it was an exempt vehicle which should have been on the 'white list' since June 2015, is clearly very different from the Beavis case. Where trespass is alleged, a third party parking firm has no locus to pursue a charge and even the landowner could only pursue nominal damages as the above citations from the Supreme Court confirm.

and amended the 2nd to last paragraph to read:
To say that a residents vehicle cannot be parked in the car park specifically built for residents use only, as has been happening for 8 years since the building was erected, would be a conflict with my lease and render the properly unfit for purpose, breach my right to peaceful enjoyment and effectively force me to move home.

Thanks CM! Like, SUPER DOOPER THANKS

I genuinely appreciate your help, along with everyone else!

New parking regulations at home...

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