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    • handymanuk
    • By handymanuk 2nd Sep 17, 3:24 PM
    • 13Posts
    • 19Thanks
    PCN For Parking in my Own Space (Leasehold Flat) - Resolved
    • #1
    • 2nd Sep 17, 3:24 PM
    PCN For Parking in my Own Space (Leasehold Flat) - Resolved 2nd Sep 17 at 3:24 PM
    Some background. I own and live in a leasehold flat. Recently the management company have contracted AM Parking Services to manage the common carpark. All residents have allocated spaces, clearly numbered. I've owned the property for 10 years. The rights to park my car in the numbered space corresponding with my property are conveyed to me within my lease with the landowner.

    One evening in July I parked my car in my space but forgot to display the permit. In the morning I had received a PCN from AM Parking Services. I appealed with them on the basis that I have sole rights to use the space without a permit or other conditions. I appealed on the basis of 'not improperly parked'. They rejected the appeal. I appealed to POPLA and was unsuccessful. I provided a copy of my lease. AM Parking Services repeated several times that they agree that I have the right to park my car in my space. They also provided the lease and made reference to several extracts and yet the POPLA assessor stated that I hadn't demonstrated that the lease was in effect as the copy I sent was not signed. This is crazy since both parties agree that it was in effect.

    Here is the decision:

    Operator: AM Parking Services
    Assessor summary of operator case: The operator states that it has issued the Parking Charge Notice (PCN) as the appellant did not display a permit.
    Assessor summary of your case: The appellant states that the space in question is leased to him and the operator does not have any rights over this allocated space. Therefore the PCN is not valid. The appellant states that there is no loss to the operator.
    Assessor supporting rational for decision: When entering onto a private car park, the motorist forms a contract with the operator by remaining on the land for a reasonable period. The signage at the site sets out the terms and conditions of this contract. Therefore upon entry to the car park, it is the duty of the motorist to review the terms and conditions, and comply with them, when deciding to park. The operator has provided photographic evidence of the signage that states “Parking Conditions Apply. Valid permit holders only. A valid permit is required to be clearly displayed in the windscreen at all times. All vehicles must park within a designated bay at all times. Failure to comply with the terms and conditions will result in a £100 Parking Charge being issued”. The operator has provided photographic evidence of the vehicle, registration number [registration], parked at [location] car park on the [date]. The warden subsequently issued at PCN at [time] as the appellant failed to display a valid permit. From the images taken by the warden at the time the PCN was issued, I can that there is no permit displayed in the appellant’s windscreen. The appellant’s case is that he owns and lives in a leasehold flat at the development since 2007. The appellant states that the lease between himself and the landowner permits him to park a vehicle in his allocated space which is bay number [number]. This bay number corresponds with his address which is number [number]. The appellant states that due to this lease the operator does not have rights over his allocated space and therefore he is not liable for the PCN as it is not valid. POPLA is an evidence based service and can only assess an appeal on the basis of the evidence supplied to us. While I note the appellant has provided a copy of a lease and plan showing the allocated bays, as this is undated and not signed by the parties to the agreement, I am unable to determine whether or not this lease is a live or valid agreement. The operator has provided a copy of an agreement between themselves and the landowner. From this agreement, which is dated 17 April 2017, I am satisfied that the operator is entitled to operate and manage the car park with effect from this date and as such is entitled to issue parking charge notices and pursue them if they remain unpaid.In addition, the appellant states that there is no loss to the parking operator. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” As such, I must consider whether the signage at this site is sufficient. When doing so, I must first consider the minimum standards set out in Section 18 of the British Parking Association (BPA) Code of Practice. Within Section 18.1 of the BPA Code of Practice, it states as follows: “You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 18.3 of the BPA Code of Practice states: “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.” As stated, these are the minimum standards that a parking operator must meet when informing motorists of the terms and conditions at a particular site. In addition to this, I note that within the Protection of Freedoms Act 2012 (PoFA 2012) it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given “adequate notice” of the charge. The Act then moved on to define “adequate notice” as follows: (3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land. Even in circumstances where PoFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own independent assessment of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and PoFA 2012, I am of the view that the signage at the site is sufficient to bring the parking charge to the attention of the motorist. Therefore, having considered the Supreme Court decision, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. While I acknowledge the appellant’s comments regarding him being a leaseholder of the car parking space, it is ultimately his responsibility to park in accordance with the terms and conditions of the car park As the appellant did not display his permit, he did not adhere to the terms and conditions of the site. In the absence of a copy a signed and dated agreement, I can only conclude that the operator is entitled to operate the site and therefore the PCN has been issued correctly. Accordingly I must refuse this appeal.

    What do I do now? I was parked in my own space. There was no loss, discomfort to anyone. The lease has not been varied, and the parking company cannot provide evidence of such, since it hasn't happened. The management company did send a letter out stating that AM Parking services would be operating and that if "You park in an unauthorised place you will be issued with a PCN". They did not specify other regulations. I did not park in an unauthorised place, it was my space! How can I be entering into a contract with the parking company for simply exercising my existing rights?

    POPLA seem to be biased against the motorist. The assessor ignored the details of my case and even spouted the Beavis case back at me. The circumstances of that case are completely different to mine. That case involves a stranger. This is a private, secure, gated carpark containing allocated spaces to which only specific named individuals are lawfully allowed to occupy. The management company have continually said that they cannot get involved. A point which I continue to rebuke, since the parking company is operating on their behalf.

    What should I do now? I have been advised to write to AM Parking Services stating that I consider the POPLA decision defective, giving the reason that they found against me on a point that neither of us were disputing. I will also state that if they continue to pursue me I will continue to resist.

    Please help. This is stressing me out no end.

    Thank you.
    Last edited by handymanuk; 08-09-2017 at 4:59 PM. Reason: Update result
Page 2
    • Umkomaas
    • By Umkomaas 8th Sep 17, 5:40 PM
    • 17,984 Posts
    • 28,468 Thanks
    Well done handyman, but you need to go further than breathing a sigh of relief over this one, as tomorrow/next week/next month, there's another ticket in waiting. One 'slip' from you and you're fighting all this all over again (and again .....).

    Tell AMP and the MA that you are not participating in their cat and mouse game. Tell them you will no longer be showing any permit, they must 'whitelist' your vehicle and they must not ever ticket your vehicle again. Should they do so, this is advance warning that you will seek punitive damages (against both organisations) for breaches they will no doubt commit under the Data Protection Act.

    Hit them hard.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • The Deep
    • By The Deep 8th Sep 17, 5:48 PM
    • 9,478 Posts
    • 9,232 Thanks
    The Deep
    Is that it? Are you satisfied that, having spent all that time, they are getting off scot free.

    Is there an RA? Do they have AGMs? If so, the very least you should do is raise it with them, with a suggestion that the PPC should be dismissed.

    If it was me I should be seeking compo from the MA for employing such a time wasting bunch of scammers and get an undertaking from them that should this happen again, they will pat you £100, cf cease and desist.
    Last edited by The Deep; 08-09-2017 at 5:50 PM.
    You never know how far you can go until you go too far.
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