PCN Issued in private development that driver is a resident in Options

[AmritC]

Hi All,

Just recently moved in to a new flat and driver was using a friend's jeep to help shift some of the larger loads. Driver took a break around midnight to have a drink and some food and upon returning to vehicle, found a ticket on the windscreen.

Please see parking terms in image below

https://cdn1.imggmi.com/uploads/2019/9/30/5...c1f4cc-full.png

Driver was parked outside of a bay by the entrance to the building as this helped with loading, parking in a bay in the underground car park would make it virtually impossible to load items up stairs/ too big for lift.

Ticket was issued on 02/08/2019 (59 days ago), since then driver has appealed to operator directly stating that he is a resident, had not been issued with a permit to display yet and loading was taking place.

The operator rejected and upheld PCN.

Driver then waited a little while and proceeded with IAS, stating the same but also mentioned that operator has failed to obtain details from the DVLA/ sent a notice to the keeper to date, therefore cannot transfer liability from the driver to the keeper.

Operator responded through IAS with the following:

"The vehicle was parked in a manner that contravenes the terms and conditions for the use of the private land
on which it was photographed. These terms and conditions are clearly stipulated throughout the area and upon
review, the operator is confident that the Parking Charge Notice (PCN) was correctly issued, in line with these
signs.

On this occasion, the vehicle was parked in a restricted area.
The advertised terms make it clear that parking is not permitted in this area. Motorists should refer to the signage
for information on where parking is permissible and park accordingly.

The appellant challenges the charge on the basis of mitigating factors. While the circumstances are appreciated,
unfortunately, mitigation does not negate liability to pay the charge. The guidance to this appeal makes it clear
that the assessor is only permitted to consider the law of contract and legal challenges & not mistakes or
extenuating circumstances.

The appellant claims to have been loading/ unloading. While the operator maintains that no signs of active
loading or unloading were witnessed, the signage does not make concessions for certain reasons for parking in
restricted areas; therefore, I do not find the purpose of parking particularly relevant. No vehicle is permitted to
be parked in this manner at any time, regardless of the driver’s reasons for doing so. The onus is on the driver
to ensure compliance with the terms; therefore, if one was unable to comply with the terms (for whatever reason)
and wished to avoid a charge, alternative parking should have been sought immediately."

Driver is still the one communicating with operator, notice has still not been given to keeper of vehicle.

What are the next steps here? Does driver refer case straight to arbitration or is there anything else to respond with?

Appreciate any advice you can offer.

This post has been edited by AmritC: Mon, 30 Sep 2019 - 16:55

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[AmritC]

I sent off the letter last week, but the day after the debt collector's letter arrived in the post with an additional £60 fee slapped on, bringing the grand total to £160. I imagine they must have already escalated it to the debt collectors before I had the chance to send them the below letter...

FAO Appeals,
I write to you regarding the above referenced ticket issued in August 2019. I have followed the appeals procedure of sending correspondence to yourself and the IAS and the appeals have been rejected on both occasions.

I want you to take this letter as formal notice to make you aware that I will not be paying the charge of £100 you are demanding from me. I have already cited the reasons in my previous appeals, namely that I was loading items that I could not do from the underground car park and I had just moved in and had not been issued with a parking permit yet.

Aside from this, I’ve now had a read over my lease and it states the following:
Access to and from the Property:
A right of way for the Tenant and all persons authorised by the Tenant at all times on foot only, or with vehicles where appropriate, over and along those parts of the Common Parts which afford access to and egress from the Property and the Parking Space provided that the Landlord may, at its discretion, change the route of any means of access to or egress from the Property or the Parking Space by giving notice to the Tenant.
Use of Retained Parts:
The right for the Tenant and all persons authorised by the Tenant:
(a) to use the dustbins in the Refuse Area for the purpose of depositing normal domestic rubbish;
(b) to use any part of the external areas forming part of the Common Parts for normal quiet recreational purposes only ;and
© to park a private motor car or private motor cycle belonging to the Tenant or its visitors in the Parking Space.

You have the pictures of where I was parked. It was on a “common part” of the land being used for loading purposes, for which I have a witness that was helping me on the day, who will attest to this.

I have included the case notes of a near identical case, Jopson vs Homeguard, where the court ruled in favour of the appellant to overturn and effectively cancel the penalty charge.

If you want to pursue this to court, I am confident this case would have the same outcome and my solicitor is in agreement about this.

Either we spend a lot of time and money (which I will be billing for) trying to get to the bottom of this, or you can cancel the charge.

I await your response.


Is it ok that they would be receiving this letter after escalating to debt collectors or is it "out of their hands" at that point?

This post has been edited by AmritC: Thu, 14 Nov 2019 - 05:07

[The Rookie]

Ignore the DC and meaningless fee, it's irrelevant.

You need to send a copy of that to the managing agent and also your landlord

[AmritC]

Ignore the DC and meaningless fee, it's irrelevant.

You need to send a copy of that to the managing agent and also your landlord

Well, I've received numerous emails and notes from the developer before as reminders that the parking management is in operation and that they won't intervene in the event of any tickets, such as below:

As parking enforcement is now live on site, I understand tickets have now been issued to various vehicles. I just want to advise you that we are in no way connected to the team at PCM and cannot appeal tickets for you. Should you have received a ticket, you must contact PCM directly to appeal any ticket.

They seem to be pretty set on not getting involved, as I assume they probably have a lot of other stuff on their hands or (more likely) simply cannot be bothered to deal with it.

Do you still advise sending a copy of the letter to them?

[ManxRed]

Tell them politely to Google the 'Law of Agency' and the term 'vicarious liability' and then mention the Protection from Harrassment Act 1997 and ask them to confirm if they still don't care.

[The Rookie]

Either the developer employe dthe parking company and are vicariously liable, or they did not.

That looks like a typical arms length 'nothing to do with us' even though they k now full well it is.

I'd also ask them directly if they contracted the parasites, sorry PCM, in or not. A simple yes or no reply is all that is

[SchoolRunMum]

See the Southampton court report of the hearing I posted this week in the completed cases section, to learn why they CAN'T add £60.

[AmritC]

Thanks a lot for all of the help and advice above.

Since sending my letter to the parking controller, they've sent a response instructing me that they can no longer "process the appeal" as the case is now with the debt collection agency and I'll now need to contact them directly.

Annoying, I will just send the same letter over to the Debt Recovery company, do they have the power to do anything here? I just thought that they received instruction from PCM to collect a debt and it's up to PCM to notify them to stop pursuing...

[ManxRed]

Don't bother with the debt collector, the parking company's letter is a non-confrontational way of saying that they won't now consider an appeal, as they want your money.

Your focus here should be on whoever hired the parking company, if this is the developer, then you need to be making them aware of their legal liability (i.e. they ARE liable) in respect of the actions of their agent the parking company, and if this includes harassment, then they are - whether they like it or not - on the hook for this. They really ought to seek proper legal advice.

Find out definitively who hired the parking company.

[AmritC]

Your focus here should be on whoever hired the parking company, if this is the developer, then you need to be making them aware of their legal liability (i.e. they ARE liable) in respect of the actions of their agent the parking company, and if this includes harassment, then they are - whether they like it or not - on the hook for this. They really ought to seek proper legal advice.

Find out definitively who hired the parking company.

Thanks for your response.

I'm a bit confused as to how they are legally liable and they need to be made aware of it.

The developers team who manage this particular development (and currently possess the freehold) are the one's who have hired the parking company. There have been repeated emails from the team informing the residents of it's deployment, to adhere to it's terms and that they won't get involved in any appeals.

"As parking enforcement is now live on site, I understand tickets have now been issued to various vehicles. I just want to advise you that we are in no way connected to the team at PCM and cannot appeal tickets for you. Should you have received a ticket, you must contact PCM directly to appeal any ticket."

That's a quote from one of the emails.

In what manner am I supposed to be contacting them and what am I supposed to be making them aware of?

This post has been edited by AmritC: Tue, 19 Nov 2019 - 05:38

[Half_way]

If you hire a company or even a person to act on your behalf, then you are jointly liable for their actions.
The company you hire are your agents, and you are the principal
There was a case not so long ago where a supermarket worker assaulted a member of the public, as principal the supermarket was liable for the action of its agent, the employee.

If you hire/allow a parking company to operate, then you can be held liable for the actions of of this parking company, so if the parking company is causing harassment, GDPR breaches etc, then you could also be jointly liable.
further complications can arise if you haven't taken out due diligence in allowing a parking company to operate, such as if the parking company is unregulated.
Also as principal if you tell the parking company to stop doing something the parking company has to comply, as without permissible they cant continue.

[The Rookie]

Vicarious liability

https://en.wikipedia.org/wiki/Vicarious_lia..._in_English_law

While this talks about 'employee' it equally applies to agents.

If I hire a thug (my agent) to beat you up, then I am just as liable as the thug.

This post has been edited by The Rookie: Tue, 19 Nov 2019 - 10:26

[AmritC]

Sorry if I'm missing something really obvious here, but what is it that I am holding the 'principal of the agent' (developers) liable for here and what justification do I give them to instruct the parking management company to withdraw the PCN?

If you hire/allow a parking company to operate, then you can be held liable for the actions of of this parking company, so if the parking company is causing harassment, GDPR breaches etc, then you could also be jointly liable.
further complications can arise if you haven't taken out due diligence in allowing a parking company to operate, such as if the parking company is unregulated.
Also as principal if you tell the parking company to stop doing something the parking company has to comply, as without permissible they cant continue.

Vicarious liability

https://en.wikipedia.org/wiki/Vicarious_lia..._in_English_law

While this talks about 'employee' it equally applies to agents.

If I hire a thug (my agent) to beat you up, then I am just as liable as the thug.

Thanks for these explanations, completely understand this and makes perfect sense that the developers hired the parking management company and are the principal in this case.

I've also got a suspicion that there are 3/4 vehicles that seem to be routinely parked in an area where they are breaching the terms of the parking operator (exactly where I got my ticket) that seem to immune to any tickets at all. They are parked in that area almost every single day at different times of the day and never have a ticket on the windscreen.

[nosferatu1001]

Harassment
Breach of your lease - right to peaceful enjoyment
Derogation from grant
Breach of dpa2018

Take your pick.

[AmritC]

Derogation from grant

Breach of dpa2018

Thanks for this. I understand how the first 2 offences are being committed, on what grounds can I accuse these? Hopefully having a call with the developer later today to discuss this.

This post has been edited by AmritC: Wed, 27 Nov 2019 - 09:14

[The Rookie]

Have a read on Ferguson v British Gas on harassment as it's a key piece of case law
https://www.brownejacobson.com/insurance/tr...h-february-2009

And Jopson v Homeguard for rights of residents., this covers derogations from grant and peacefull enjoyment.
https://www.parkingcowboys.co.uk/wp-content...6J-Approved.pdf

[nosferatu1001]

They never had rights to access YOUR PERSONAL DATA from the DVLA in order to send a postal NtK (assumes no notice on windscreen and youd id not give them your data)

AS such they are in breach of the DPA
As such the Principal is liable as well.