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VCS - regarding a residential parking spot
OneSaidFred
post Wed, 1 Aug 2018 - 18:26
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Dear forum users,

I thought I would share my experience so far, as well as look for some pre-emptive guidance at certain stages which I am not sure about/hesitant. I have spent a lot of time on the MSE website, taking down notes on each stage up to a request to go to court. Here are the key points so far:

1) I am a private tenant in a block of flats in which a lettings agency manages the property on behalf of the landlord.
2) I am allocated one designated parking spot as per my AST (tenancy agreement) - the AST makes no reference to me having to display a parking permit.
3) I was issued with a parking permit from the property management company (who i assume own or manage the lease) a month after moving into the property several months ago.
4) I supplied my reg number to the management company as they said they would not issue a visitors permit (for a handful of bays) without it. I provided it and they supplied it accordingly.
5) I have since been displaying a "permit" in my car for the last few months.
6) The plastic sticky wallet holding the permit to my windscreen fell off (I can only assume due to the hot weather) and landed in the footwell. As I did not attend to my car for the 2 days following this, I arrived to my horror at my car (in my designated spot) with 2 Red/Black cards attached saying "this is not a parking charge notice" from Vehicle Control Services Ltd.
7) Following advice on the MSE forums, I waited for the NTK (x2) to show up.
8) In the last few days I have submitted their appeal template via myparkingcharge website making no mention of any driver and only myself as the keeper and now await for the inevitable rejection.

My questions and concerns are as follows:

A) My tenancy agreement makes no reference to the property management company, VCS or that I have to display any kind of permit.
B) I have never seen, or been made to see, a copy of any lease that the landlord may be subject to, therefore have no knowledge of whether this lease states anything about a permit. Does this matter? Am I protected via the AST?
C) I don't really want to start harassing my Lettings Agent on the grounds that they are in charge of nearly 2 months worth of rent as a deposit, and they could easily start harassing me when I come to leave the property by making minor claims on my deposit etc... Is there any way to leave them out of this or would you say this isn't possible?
D) MSE makes the point of not appealing, when asked to, to the IPC on the grounds of it being a waste of time and a "kangaroo court" - is the court going to look unfavourably if I don't do this?
E) What am I likely to expect from this point onwards and on what timescales?
F) What am I ignoring, and what am I responding to if received? I am aware not to ignore a letter about attending court, but how is this received?

Any help and guidance would be greatly appreciated. The work you people do here, alongside other websites, makes me feel like there is hope for humanity yet...
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post Wed, 1 Aug 2018 - 18:26
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OneSaidFred
post Sun, 27 Jan 2019 - 19:02
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I have edited the following:

12. The Claimant has added an additional sum of £60 to the original £100 parking charge, for which no justification has been provided. The Defendant believes that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.
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OneSaidFred
post Sun, 27 Jan 2019 - 19:24
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DEFENCE (v2)

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is admitted that, at all material times, the Defendant was the registered keeper of the XXX with vehicle registration number XXX which is the subject of these proceedings.

3. It is admitted that, at all material times, the Defendant's vehicle was parked at [location] in the correct parking space allocated to his apartment XXX.

4. The Defendant has held an Assured Shorthold Tenancy agreement at XXX (the “Premises”) between himself and XXX (the “Landlord”) where the Landlord has let to the Defendant (i.e. the “Tenant”) the Premises for a period of 24 months, with the tenancy starting on and including the XXX and shall end on and include the XXX. This agreement was brokered and administered via XXX (the “Agent”). A copy of the Tenancy Agreement will be provided to the Court.

5. The Defendant has the right to park a vehicle granted by the Tenancy Agreement, which does not require the display of a permit or to pay penalties to third parties, such as the Claimant. The Claimant has no consideration to offer the Defendant that the Defendant does not already possess. The relevant paragraphs of the agreement are:
“SCHEDULE 1
OBLIGATIONS OF THE TENANT
Cars and Parking
15.1. To park a private vehicle only at the Premises.
15.2. To park in the car parking space, garage or driveway allocated to the Premises, if applicable.
15.5. Not to park any vehicle at the Premises that is not in road worthy condition and fully taxed.
SCHEDULE 6
SPECIAL CONDITIONS
Special clauses individually negotiated between Landlord and Tenant
1. Including one allocated parking and use of bike shed.”

6. It is noted that within the terms of the Tenancy Agreement, references are made to a “Head Lease”. The copy of the Head Lease which the Defendant possesses contains no requirement to display a permit, does not override his right to park granted by the Tenancy Agreement and, therefore, the Claimant is still without any possible consideration they can offer that the Defendant does not already possess. A copy of this Head Lease will be provided to the Court.

7. Even if the Claimant claims the vehicle was in breach of any of the enumerated requirements, which they do not, as a third party, they have no rights to enforce any of the terms of the Tenancy Agreement or of a Head Lease.

8. The Defendant, at all material times, kept a vehicle in accordance with the terms granted by the Tenancy Agreement. The erection of the Claimant’s signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the Tenancy Agreement. Accordingly, the Defendant denies having breached any contractual terms as no contract was entered into, by intention or by conduct.

9. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement and the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue pieces of paper that state ‘This is not a Parking Charge Notice' and to then pursue payment by means of litigation.

9.1. It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') of placing hybrid notes stating 'this is not a Parking Charge Notice' on cars, then ambushing the registered keeper with a premature postal Notice to Keeper, well before the timeline set out in paragraph 8 of the POFA, is unlikely to have been in the contemplation of the Claimant's principal.

9.2. It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.

10. The Claimant, or a Superior Landlord, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to section 37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

11. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

12. The Claimant has added an additional sum of £60 to the original £100 parking charge, for which no justification has been provided. The Defendant believes that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

13. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in of its own initiative, using its case management powers pursuant to Civil Procedure Rule 3.4, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £160.00, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

13.1. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

13.2. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.
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OneSaidFred
post Mon, 28 Jan 2019 - 18:22
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Have made a couple of minor alterations. Have printed, signed etc... and is ready to go. If anyone has any last minute observations which are important, please let me know.

Kind Regards
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