Permit visable but not on windscreen - PCN received

[OutsiderLookingIn]

Hi there.

I'm after some advice.

 

My wife has a private parking permit for a parking space she uses for work.

 

Yesterday, she received a 'parking charge notice' stuck to her window because her permit wasn't displayed.

The truth was that the permit was visible but it wasn't in it's holder (normally stuck to inside of windscreen)

because the windscreen has recently been replaced and the holder was damaged.

 

she has been having to remember to place the permit on the dashboard the last few days until she gets a new permit holder.

The reason why we are incensed at the charge is because although the permit wasn't on the dashboard on this occasion, it WAS visible in the car.

 

It was in the centre console between the seats, with all the necessary details clearly visible.

A cursory glance into the car would have been enough to see the permit.

 

The Parking company is Premier Park Ltd.

 

Now there are some complications.

My wife has a company car and so all communications will presumably go through LEX, the lease company.

She is concerned that contesting this penalty could cause problems for her regarding the company car.

 

I have concerns that LEX could take a while to forward any documentation they may receive in connection to this parking charge.

 

Also, the private parking space is actually for a flat which the owner has 'leased' to my wife (for a monthly fee).

This presumably contravenes the flat owners' agreements when he purchased/rented flat.

 

So, is this worth appealing?

My wife just wants to pay the fine and forget about it but I've hated these private parking companies

ever since I got clamped in Cornwall a few of years ago for overstaying by 2 minutes

 

Any help or advice greatly appreciated

[silverfox1961]

Hi and welcome to CAG

 

As this is a company car, she should contact Premier to advise them that she was the driver or else the company may get a notice to keeper which they may pay and look to your wife for repayment.

 

As this is a private parking ticket, she can appeal to Premier although they are more than likely to reject the appeal. They should then give a POPLA code so she can take the appeal higher.

 

I would also contact the landowner to see if they can intervene

[armadillo71]

Hi there.

I'm after some advice. My wife has a private parking permit for a parking space she uses for work. Yesterday, she received a 'parking charge notice' stuck to her window because her permit wasn't displayed. The truth was that the permit was visible but it wasn't in it's holder (normally stuck to inside of windscreen) because the windscreen has recently been replaced and the holder was damaged. So she has been having to remember to place the permit on the dashboard the last few days until she gets a new permit holder. The reason why we are incensed at the charge is because although the permit wasn't on the dashboard on this occasion, it WAS visible in the car. It was in the centre console between the seats, with all the necessary details clearly visible. A cursory glance into the car would have been enough to see the permit.

 

The Parking company is Premier Park Ltd.

 

Now there are some complications. My wife has a company car and so all communications will presumably go through LEX, the lease company. She is concerned that contesting this penalty could cause problems for her regarding the company car. I have concerns that LEX could take a while to forward any documentation they may receive in connection to this parking charge.

 

Also, the private parking space is actually for a flat which the owner has 'leased' to my wife (for a monthly fee). This presumably contravenes the flat owners' agreements when he purchased/rented flat.

 

So, is this worth appealing? My wife just wants to pay the fine and forget about it but I've hated these private parking companies ever since I got clamped in Cornwall a few of years ago for overstaying by 2 minutes

 

Any help or advice greatly appreciated

 

It is not a fine.

As this is residential parking, and she pays for the space, no loss has occurred.

She will have to contact the lease firm and tell them that under no circumstances are they to pay any money to any company in regards tto the rental car without contacting her first.

She will have to appeal as the driver stating that she has permission to park there.

Cancel charge or issue code for POPLA.

[OutsiderLookingIn]

Thanks for replies

What about the issue of the parking space not actually belonging to her (ie. she pays the owner of the space to use it and have the permit)?

[armadillo71]

Thanks for replies

What about the issue of the parking space not actually belonging to her (ie. she pays the owner of the space to use it and have the permit)?

 

The owner of the space allows your to park there...

No trespass or loss to the landowner.

[OutsiderLookingIn]

The owner of the space allows your to park there...

No trespass or loss to the landowner.

 

Ahhh I see. Thanks.

[ericsbrother]

As it was stuck to the windscreen she can appeal it as the driver and they have to respond to her. Get a letter off in the post saying that a permit is held, was visible and no loss can possibly have been caused to the landowner by her use of her allocated bay so it is expected that the demand be cancelled or a POPLA code issued in the prescribed time.

If they bother the RK before 28 days they are in breach of the protocols of the PoFA and that should be drawn to the attention of the BPA and POPLA at the time of any appeal.

[OutsiderLookingIn]

As it was stuck to the windscreen she can appeal it as the driver and they have to respond to her. Get a letter off in the post saying that a permit is held, was visible and no loss can possibly have been caused to the landowner by her use of her allocated bay so it is expected that the demand be cancelled or a POPLA code issued in the prescribed time.

If they bother the RK before 28 days they are in breach of the protocols of the PoFA and that should be drawn to the attention of the BPA and POPLA at the time of any appeal.

 

Thanks for that EB.

 

I have drafted a letter (copied below). I have put the bit about the circumstances of the permit because it says they have photographic evidence of the permit on display on the dashboard. I therefore expect them to reply saying this. Or should I leave that bit out?

 

 

Here's the letter:

 

Dear Sir/Madam.

I write with reference to the Parking Charge Notice received on 18th March 2014 at 14:53.

Please take this letter as my appeal to the Notice.

 

For your information, I was the driver of the vehicle and as the vehicle is a company car, all correspondence regarding this PCN/Appeal should be addressed to myself and not the lease company it is registered to.

 

I would like to appeal on the grounds that I hold a valid a valid permit to park in the space I was parked in. I have a permit holder installed to the inside of my windscreen which is where the permit is permanently displayed. However, a few days prior to the 18th March, I had the windscreen replaced due to a chip. As a result, I no longer had a holder for the permit (I have now replaced it). Despite the PCN stating that no permit was visible, I DID have the permit visible in the car, it just wasn’t in the usual holder.

 

As I had a valid permit to park in my allocated bay which was visible no loss can have been caused to the landowner. As a result, I would expect my PCN to be cancelled. If you deny my appeal then please send me the POPLA code within the prescribed timeframe.

 

Yours Faithfully

[Homer67]

The first line is fine, keep it simple and say you have a permit and it was visible, don't elaborate on the exact circumstances of where the permit was, then advise than any action on their behalf will be rigorously defended on the grounds that you have paid for the permit as no loss was incurred.

 

If they reject it use the POPLA code they must give you and appeal on the same grounds to POPLA and include that any breakdown of costs cannot be upheld as you have a permit.

[OutsiderLookingIn]

Sorry, forgot to update the thread.

 

Thanks for your input Homer. I have done as you suggested and I sent the letter recorded delivery last week. I'll await the expected appeal rejection letter.

 

Coincidentally, Lex sent out an e-mail to all company car drivers in her company about this very subject! What's the chances of that? It states that they will pay any penalties they receive in the first instance and then recover the money from the driver. I really hope that Premier Park take note of my instruction to address all future correspondence to the driver and NOT to Lex.

 

I'll keep you all updated as and when I receive anything.

 

Thanks for your help

[OutsiderLookingIn]

Hi all

 

Just received communication from Premier Park. As expected after 'examining all the evidence blah blah blah......your appeal has been denied'

 

I have never done anything like this before.

 

On the online POPLA appeal page it asks:

 

'Why are you appealing?'

 

The answer that seems applicable is 'I was not improperly parked' - is that right?

 

I would also really appreciate some help with how to word the appeal.

Something which I failed to mention previously is that in order to gain entry to the car park, you need an electronic fob which activates the electronic roller shutters. My wife obviously has one. It's not as if anyone can drive into the car park.

 

I look forward to any help with this

[silverfox1961]

Ericsbrother will be the one I think. He is quite good at these things.

 

The bare bones will be

a) you were parked correctly

b) your permit was visible.

c) the amount charged is not a true Genuine Pre estimate of Loss.

d) You pay for the privilege to park so again no loss.

[ericsbrother]

I wouldnt use the online appeals as you cannot put much down that is outside their little tick box exercise. The first thing I would point out is that the parking company has no authority to issue anything at all as she is the "occupier" of the land and her right to enjoy the use of it as she sees fit is not for Premier Park to interfere with and that they have trespassed on to her property by placing the ticket on the screen. Then you can say that a permit was displayed "for the convenience of the administration of the land" rather than as a contractual obligation. Then you can point out that no loss has been caused because there is no contract and that as PP have failed to show a contractual obligation because of supremacy of contract on her part there cannot be a loss caused by her enjoying her parking space.

[OutsiderLookingIn]

Thanks silverfox and ericsbrother - I really appreciate your help with this

 

EB - The online form has an area to write as much as you like - can I not use that? Or is a paper trail more preferred?

 

You state that my wife is the 'occupier' of the land - not sure what you mean, my wife rents the space from the property owner that owns the permit she holds (of course they don't know that).

 

PP have failed to show a contractual obligation because of supremacy of contract on her part

 

Sorry to be really thick here but could you explain what this means in more layman's terms - this is all very new to me and I suspect that I am not the sharpest tool in the box

 

Finally, what are the odds of this appeal at POPLA succeeding? I have just read about a similar one (where the owners permit had fallen off the windscreen) and that failed the POPLA appeal.

 

Many thanks again for your help.

[ericsbrother]

I would recommend paper trail. As for occupier, I mean exactly that, she has a legal right to be there without hindrance from anyone else. As for supremacy of contract, it means that you cannot be bound by a contract signed by someone who has no interest in the matter greater than yours. For example, an estate agent cannot force you to sell your house to a particular person just because they have agreed to sell your house for you, it is still your house and you can sell it to anyone you wish, or not sell it at all.

So, the parking space is hers and these clowns have no right to interfere with her right to park there otherwise they can be sued themselves for trespass and harassment. The contract they have with the managing agents do not affect her rights.

I would be sending a very strongly worded appeal to POPLA, copied to the parking people, pointing this out and say that there is no authority held by the parking clowns to issue such a demand from her as her rights via the tenancy agreement she has are inviolate.

[ericsbrother]

You could also add that the parking co has no "locus standi". That will force POPLA to look at any claimed contract and PP certainly wont be able to produce one that your wife has signed her rights away with.

[OutsiderLookingIn]

After looking at loads of successful appeal examples on the net, I have tailored some of them to my situation. How does this draft appeal look?

 

POPLA Code: xxxxxxxxxxxxx

Vehicle Reg: xxxxxxx

PPC: Premier Park Ltd

PCN Ref: xxxxxxxxx

Alleged Contravention Date & Time:

Date of PCN: xxxxxxxxxxx

 

Dear Sir/Madam.

On 18th March 2014 a Penalty Charge Notice was attached to my vehicle by Premier Park Ltd requiring payment for a charge of £100 for an alleged parking contravention. I was the driver of the vehicle in question and I would like to appeal this notice on the following grounds:

 

 

1. Unfair Terms

 

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term."

 

2. Contract with the landowner - not compliant with the BPA code of practice and/or no legal status to offer parking or enforce charges

 

Premier Park Ltd do not appear to own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, Premier Park Ltd has not provided me with any evidence that they are lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

 

I require Premier Park Ltd. to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.

 

Contracts are complicated things, so a witness statement signed by someone is not enough, neither is a statement that a person has seen it. A copy of the original showing the points above is the only acceptable items as evidence that a contract exists and authorises Premier Park Ltd the right, under contract to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.

 

I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

 

I do not believe that the Premier Park Ltd. has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as Premier Park Ltd asserts, a contractual term. If they were a contractual term, Premier Park Ltd would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that Premier Park Ltd’s charges are in fact damages, or penalties, for which Premier Park Ltd must demonstrate their actual, or pre-estimated, loss, as set out above.

 

Premier Park Ltd also makes reference in their appeal refusal of 10th April 2014 to “seek to recover the monies owed to us” and makes no reference to the Landlord at all.

 

3. Unreasonable

 

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

 

 

 

 

4. Charge not a genuine pre-estimate of loss

 

The demand for £100 is punitive, unreasonable, exceeds an appropriate amount, has no relationship to the loss that would have been suffered by the Landowner, and is therefore an unenforceable penalty. Furthermore, it exceeds the BPA’s own Code of Practice.

The BPA Code of Practice states:

19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.

 

 

 

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

 

 

 

 

Yours Faithfully,

[ericsbrother]

Why didnt you just go with no authority to claim anything as vehicle wasparked by/belongs to the "occupier" and therfore no claim can arise from the lawful use of ones own property.

[OutsiderLookingIn]

Why didnt you just go with no authority to claim anything as vehicle wasparked by/belongs to the "occupier" and therfore no claim can arise from the lawful use of ones own property.

 

Is it not an issue if it's not her property though? She is using someone else's space (with permission - she pays them monthly for it).

 

Or is it just a case of POPLA don't know that and it won't matter?

 

Are the appeal points I've put so far also valid to strengthen the case?

 

I've just been going by the bewildering amount of info out there and trying to adapt/use existing winning appeals as a basis for my own.

[armadillo71]

Is it not an issue if it's not her property though? She is using someone else's space (with permission - she pays them monthly for it).

 

Or is it just a case of POPLA don't know that and it won't matter?

 

Are the appeal points I've put so far also valid to strengthen the case?

 

 

I've just been going by the bewildering amount of info out there and trying to adapt/use existing winning appeals as a basis for my own.

 

Your wife has permission from the landowner to park in the space. She even has a permit. That makes any claim from a third party unenforceable.

Add that to your appeal.

Make sure you ask for the full breakdown of the genuine pre estimate of loss as well.

You have called it a penalty charge notice at the beginning...

[ericsbrother]

essentially as she is the occupier it is treated as her property and some jumped up agent has no right to tell her how she should use it. the permit scheme is for convenience not an obligation and Premier certainly dont have a legal standing to ask her for money.