Next Residents Meeting
Wednesday 22 May 2024 at 7.30pm
via Zoom: https://bit.ly/BRRAResidentMeets2024
Meeting ID: 883 1916 4135 Passcode: 043858
Residential Parking
Templates to appeal parking tickets in here !
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There are many residential situations where some form of parking management is desired, but instead of doing their homework properly and engaging a reputable parking company the Management Company bring in one of the bottom-feeders.
These companies, such as Vehicle Control Services, Link Parking and ACE Security have no desire to implement proper parking management and only want to introduce schemes which are hard to use and which allow them to issue as many parking charges to residents as possible.
Typical tactics are a feeding frenzy of ticket issuing on day one of the contract, refusal to issue multiple permits, failure to reissue new permits on expiry of old tickets, reliance on paper permits, and refusal to cancel charges when a mistake has been made.
The reason why management companies introduce most of these schemes is to deter non-residents from using residents' parking spaces. The reality is that most charges are issued to residents. So, what exactly is the situation if a resident gets issued a ticket?
Primacy of Contract
The idea behind primacy of contract is that a contract cannot be unilaterally altered by one party without the permission of the other. In the case of residential parking, the lease is the key document. If this gives the resident the unfettered right to park then this cannot be altered later, for instance by requiring a permit to park.
There is a large body of case law which establishes this. In Saeed v Plustrade Ltd [2001] EWCA Civ 2011 it was found the managing agent could not reduce the amount of parking spaces available to residents. In Jopson v Homeguard [2016] B9GF0A9E, on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading.
In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.
In Link Parking v Ms P C7GF50J7 [2016] it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.
Clauses in the Lease
Sometimes the situation is clouded by clauses in the lease which might allow management agents the right to impose further conditions.
In Pace v Mr N [2016] C7GF51J1, PACE came back again, this time claiming that clause 6.3 of the lease allowed the terms of the lease to be varied. The judge rules that this clause required a month's notice to be given, and as this had not occurred, the point was moot. The claim, and 7 others relying on this, were dismissed.
However, this does mean that the lease needs scrutinising carefully.
It is not sufficient for the operator to simply point to a clause which allows the lease to be varied. They must prove that the lease was so varied, and furthermore varied by the lessor. The operator isn’t a party to the lease and cannot vary it.
Furthermore, a clause ostensibly permitting variations does not give carte blanche to introduce any terms at whim. Such variation clauses are normally couched in terms stating that variations can be made for the good management of the site, or similar. So, if a variation can be shown to be to the significant detriment of the lessees, it should be challenged. A variation might also conflict with other terms of the lease e.g. the right to peaceful enjoyment. If so then, again, it should be challenged.
The Parking Contract
If the lease is allowed to be varied, then this new contract will be the one in force. It is important to note that this contract is not the same as the signage on site, which may not even be there at the time. In Jopson v Homeguard [2016] B9GF0A9E it was established that ParkingEye v Beavis [2015] UKSC 67 does not apply to residential parking, and this will therefore bring the penalty doctrine back in play. The charge will therefore likely be a penalty and unfair consumer charge unless it is found the charge is a pre-estimate of loss or there is commercial justification. The supreme court found that £85 was not a genuine pre-estimate of loss in Beavis as there was no direct loss to the parking company. Similarly, it would be hard to establish commercial justification for charging residents hundreds of pounds a year to park in their own parking spaces.
Communal Areas
There may be communal spaces (eg visitor parking) or access roads where parking permission is not granted by the lease or covered by a permit scheme. Communal areas are not necessarily a free-for-all, governed only by the operator signage. This was central to the Jopson case: an easement over the access roads implies a right to stop and load/unload. Furthermore, easements are sometimes worded such that they grant lessees the use of communal areas without specifying any uses, in which case a lessee can do what he likes there, including parking. And in extreme cases (such as one on MSE a while ago where a tenant had been parking in the same place for decades) a long-term resident might have acquired an easement by prescription.
The Signage - Performance
In those instances where there is no primacy of contract it is likely the contract will be formed by signage on site. This will need to be plentiful and easily visible, otherwise no contract can be entered by performance.
In Link Parking v Mr L C9GF5875 [2016] it was found that there was no entrance signage at a residential site and the other signage was not visible. The claim was dismissed.
The Signage - No Offer
If the wording of the signage forbids parking, then there is no offer to park and therefore no contract.
This is clear from several cases. In PCM-UK v Bull et all B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company.
In UKPC v Masterson B4GF26K6[2016] it was also found the signage was forbidding and so the matter was one of trespass. The parking company did not have standing to claim.
In Horizon Parking v Mr J C5GF17X2 [2016] it was also found the signage was forbidding and so the matter was one of trespass. The parking company did not have standing to claim.
Authority to Operate
The operator should be challenged to show their authority to operate. There will usually be a chain of agents between the lessor and the operator, and it’s quite possible that this chain is broken somewhere in terms of devolving authority to the operator.
Other matters
The signage might not be forbidding. For instance visitor parking might allow 2 free hours for visitors, and would therefore appear to be similar to the Beavis case. In this situation, whether the charge is enforceable would depend on the frequency, visibility and readability of the signage, and whether the charge is made plain to the motorist or hidden in the small print. the Beavis judgment provides guidance on this.
Lastly, the signage might not comply with information requirements laid down in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014. This Act came in force after the Beavis case and as yet there is no case law available. However clause 13(1) of the act states that a contract is not binding on a consumer if the correct information is not provided.
Data Protection
All this means that residential parking is quite a minefield for everyone, and parking companies are quite likely to get this wrong. If a parking company gets your personal information from the DVLA for a situation where a charge is not valid, then it is highly likely that a breach of data protection laws has taken place. In this situation the case of Vidal-Hall v Google Inc [2014] EWHC 13 (QB) provides authority that misuse of personal data is a tort and that damages may be non-pecuniary. The case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 provides authority that a reasonable sum for compensation would be £750.
Trespass
In Davey v UKPC MR Davey sued UKPC for trespass for placing tickets on his vehicle which was parked on his own land. He won the case and was awarded £150 damages for trespass and £1280.26 in costs.
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Quick guide to contest Link Parking - Syed's court case
Our committee member Syed Islam recently won his court case against a parking ticket from Link Parking.
After getting many queries from the residents on this victory, the Association would like to share his experience with his ‘Quick guide against Link’ as below.
Please note that although this worked for Syed, it may not necessarily be a workable solution for all (see disclaimer).
You might also consider that if you find this quick guide a bit too involved, you will definitely need a solicitor. It's our view that many cases can be won if you manage to give the solicitor sufficient information and you will win your costs back for paying for a solicitor. Show them the second part of this guide (the evidence) in any case.
Disclaimer: Please seek legal/professional advice : this is in no way a legal guide.
Quick Guide:
The court procedure is as important as your carefully prepared defence.
We will discuss two things. The arguments that won this case and the procedure.
Procedure
Most people lose because they are not fully prepared particularly on the procedure.
The courts are completely unforgiving on matters of procedure.
If you had your appeal to Link Parking rejected your next option may be either to pay or go through the courts, should link decide to pursue you. This is entirely your decision. There is a body which Link refers you to in disputes, but we have not assessed this route and have only heard that they are no help.
If you do go court, we have listed some steps below. Make sure you check for yourself as this is only a guide.
You will receive a court summons first. Make sure you respond online within 28 days to acknowledge it.
You will then most likely receive a letter saying Link would want this case without a hearing. You can opt for this but in my opinion, I would want a hearing as it is fairer and you can cross examine. If you do go through this route, you will need to reply back with a recorded delivery that you want a hearing at your local court.
Next you will receive a letter from the court stating the location and what you need to do within a timeframe (normally 14 days before hearing date) make sure you take a note of this as any evidence or information sent after this date will jeopardise your case. Always read what the court advises you to do. Most people think you can turn up at court and win because it’s a “private parking ticket” when it’s far from the truth.
Now this is the waiting game, you got 2 options, you wait for Link’s written statement and evidence or you send it first. Personally, I would wait for theirs first then reply - the main reason behind that is you can counter their arguments.
On the reply, make sure you file a witness statement stating exactly why you are disputing the ticket and mention that you have attached further evidence with the witness statement. Refer to the evidence within the witness statement. The more evidence such as photos, letters, correspondence the better it is for you.
This bit is crucial, make sure you send the witness statement and evidence via recorded delivery to both the designated court and Link Parking’s solicitors or the party that the letter states. They must be the exact copies!
Keep a hold of your receipts and take them to court just in case if any party denies they did not receive it.
Keep all correspondence with the court and link with you also. Arrive early and stick to your defence. If you do win, you can claim costs.
Be professional in the hearing, you are in the court of law so don’t let your emotions get the better of you. There are times you will be frustrated but learn to relax and explain why the ticket is invalid (IF it is invalid.) The court may decide in your favour or against you. All situations are different.
If you cannot attend a hearing and need to delay it for whatever reason make sure you let the court know backed up with evidence and a polite letter. It is up to the judge if he/she wants to delay the hearing they may well not even do so.
Always seek legal advice or representation if unsure.
Arguments to win your case.
In Sid's case, there were a number of rulings - some apply to all residents and some to those who have been ticketed for parking on yellow lines, or where there are no yellow lines but you got a ticket anyway!
The judge in Sid 's case sited agreed with Sid's photographic evidence that there were not clear boundaries dictating which part of the estate is private and which is council.
The judge also agreed that the link parking signs were not clear. They do not specify a location. This appears to be quite important. He asked Sid. “what is or where is Barking Riverside? ”, Sid replied "It’s a newly developed area in the London borough of Barking and Dagenham where they are building 10,000 homes."The judge then concluded that the ticket that was given was questionable, as the location that was given was "barking riverside " and not a specific road. He quoted Sid to the link parking barrister, “Barking Riverside is a very big area, a ticket should say the exact location”.
Sid showed the judge a letter from Barking Riverside Ltd signed by the director Matt Carpen, from April 2017, that clearly indicates there was confusion - three letters in a row with different instructions - and that a meeting took place regarding this parking fiasco. We have often posted this letter to Facebook to be used in evidence.
The judge accepted this evidence too. He said in light of the parking enforcement it was quite clear there was a lot of confusion as there was a meeting with residents and subsequent changes of the regulations. We can point out that enforcement was immediate on the new regulations so no proper notice was given.
In cross questioning, the link parking barrister said, " if you were confused why didnt you call the local authority or link when you parked". Sid replied, " it’s your responsibility to make it clear not mine."
Link also said "why didn’t you appeal? " but the judge was not moved by this. It is link's responsibility to prove the defendant guilty. It may not be in your favour to appeal but rather go straight to court (if link dare take you there. )