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UK-CPM PCN issued in residential visitor car park, A case of the fluttering permit
Adzi
post Sun, 7 Jan 2018 - 21:20
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​Good evening all,

After sifting through your wonderful help I have a plan of action to asssit the driver, yet I just want to make sure we’re doing right by the experts.

How it went down: The driver parked on the 6th January 2017 at 12:10 in a visitors bay and displayed their visitor permit on their dashboard. The driver noted that it was a very windy day and therefore there was some degree of difficulty in keeping the permit visible however closed the car door and checked it was on display. The driver returned to the vehicle on 7th January 2017 and found the parking charge notice affixed to the windscreen and the visitors permit which was previously on display was in the footwell of the drivers side.

Parking “conditions”: The visitor bay is part of the private parking for residents of the estate where the driver is jointly named on the lease of a flat. The leaseholders own the demised premises, and the freeholder owns the land including the parking bays. Both leaseholders pay maintenance and service charge fees annually and are granted use of one numbered bay in the lease.

The lease also refers to abiding by the Estate Rules which is a document published on the estates notice boards and included as part of the sales pack. In the Estate Rules nothing is mentioned about visitor parking, nor anything regarding a private parking company.
A separate document referred to as Parking FAQ and not referenced in the lease states the provision of a parking permit for the numbered bay and two visitors permits which are to be displayed when using a visitor space. The rules state that visitor bays are first come first serve and that they may only be occupied for a maximum of 24 hours with no return within an hour.

Planned course of action:
- Await NTK, then appeal as keeper to UK CPM on basis of primacy of contract RE lease doesn't mention enforcement etc?. Any need to mention fluttering permit?
- I guess that the appeal will be rejected and then appeal to IAS (which will get rejected?)
- Not sure how litigious UKCPM are but await court claim and fight?

What is everyone's thoughts?
Attached is the redacted PCN and signage.

Many Thanks!

This post has been edited by Adzi: Mon, 8 Jan 2018 - 17:38
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post Sun, 7 Jan 2018 - 21:20
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hexaflexagon
post Mon, 8 Jan 2018 - 10:20
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I'd also edit the PCN to remove the two references to the location.


As you've no doubt discovered what the lease says is paramount and if there is an unrestricted right to park - assuming a bay is available, no subsequent permit or other parking rules scheme can change that unless the leaseholder has signed a new lease which requires the permit be displayed.
Did the PPC start the permit scheme after the lease was signed?

What's the exact status of the Parking FAQ document? How and when was this communicated to you. Not that I think it's of any particular importance since the lease is all that matters but if it was communicated after signing the lease it's another defence point should you ultimately in a small claims court get a judge who's having a bad day.

The general advice is not to appeal to the IPC since they are not a disinterested organisation and rarely (unlike the BPC) uphold any appeals. A rejection by the IPC might be seen by a judge as a point against you.

Await NTK and wait until a couple of days before the deadline and then reject it as the keeper saying you decline to name the driver. Then hope that the CPM fails to issue a POFA compliant NTK by the deadline.

If a POFA compliant NTK is received then prepare for the long haul and a series of debt collector letters and other veiled threats of court action, CCJ's, debtors prison and the workhouse.

This post has been edited by hexaflexagon: Mon, 8 Jan 2018 - 10:23
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kommando
post Mon, 8 Jan 2018 - 10:25
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QUOTE
Await NTK and wait until a couple of days before the deadline


Just to clarify, the earliest they can send a NTK is day 28, so you appeal as keeper day 25/26 so that they try and save £2.50 by not paying the DVLA for the keeper data. Then if they do not raise and deliver a NTK by day 56 using data from the DVLA then they have failed the requirements of POFA 2012 to make the keeper liable.
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Adzi
post Mon, 8 Jan 2018 - 17:34
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QUOTE (hexaflexagon @ Mon, 8 Jan 2018 - 10:20) *
Did the PPC start the permit scheme after the lease was signed?


Thanks for the information! The lease was signed after the PPC scheme was brought in and copies of the Parking FAQ were provided in the sales pack from the managing agents. However, having checked the signed lease document, it makes no reference to any parking restrictions - the only restrictions being "not to cause obstruction to roadways or other lesees" and "vehicles not permitted weighing in excess of 3.5tons".

So to clarify, keeper to appeal to UK-CPM on day 25/26 (via post as I note they do not have online appeals?) declining to name driver, hoping that non-compliant NTK is sent. If a POFA compliant NTK is sent, hunker down - do not appeal to the IAS/IPC and await possible court papers?
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hexaflexagon
post Mon, 8 Jan 2018 - 18:14
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I think that about sums it up but see what others may add.

The only potential wrinkle I can see is whether there is an indirect connection from the 'Estate Rules' document to the 'Parking FAQ' document.

i.e. do any of the estate rules touch on or refer to the Parking FAQ document whether directly or through some woolly worded catch all phaseology like 'These estate rules are deemed to include any other documents or requirements that the Freeholder/Land Owner may from time publish for the benefit of all Leaseholders...'

Does the lease use any words like "quite enjoyment" or similar, of the leased premises?
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Adzi
post Mon, 8 Jan 2018 - 22:29
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QUOTE (hexaflexagon @ Mon, 8 Jan 2018 - 18:14) *
I think that about sums it up but see what others may add.

The only potential wrinkle I can see is whether there is an indirect connection from the 'Estate Rules' document to the 'Parking FAQ' document.

i.e. do any of the estate rules touch on or refer to the Parking FAQ document whether directly or through some woolly worded catch all phaseology like 'These estate rules are deemed to include any other documents or requirements that the Freeholder/Land Owner may from time publish for the benefit of all Leaseholders...'

Does the lease use any words like "quite enjoyment" or similar, of the leased premises?


We may have a problem, after reading through the lease, I have the following clause (in the lease):
To comply with other and make all reasonable endeavours to ensure that all persons living in or visiting the Demised Premesis or using the Parking Space or any part of the Maintained Property shall comply with the Estate Reglations

The Estate Regulations read as follows:
3. In using any part of the Development the Lessee shall not:
3.2. contravene any parking or traffic regulation arrangement displayed on notices or which may from time to time be notified to the Lessee in writing by the Lessor


There is no mention of a permit in the lease or Estate Regulations, however this may count against us in the event of a claim?
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hexaflexagon
post Mon, 8 Jan 2018 - 23:00
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Mmm. could be somewhat tricky.

Is there a distinction between bays that are termed 'visitors bays' and a dedicated bay for the sole use of the leaseed property. i.e. with a single property where both leaseholders are named in the lease do you have access to both a dedicated bay and one of several general use visitors bays

I'm clutching at straws just at the moment and this may not be relevant at all but let's understand the exact position before considering further. Are there any other references to parking in the lease or any separate Management Contract that leaseholders have signed.
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Adzi
post Mon, 8 Jan 2018 - 23:26
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QUOTE (hexaflexagon @ Mon, 8 Jan 2018 - 23:00) *
Mmm. could be somewhat tricky.

Is there a distinction between bays that are termed 'visitors bays' and a dedicated bay for the sole use of the leaseed property. i.e. with a single property where both leaseholders are named in the lease do you have access to both a dedicated bay and one of several general use visitors bays

I'm clutching at straws just at the moment and this may not be relevant at all but let's understand the exact position before considering further. Are there any other references to parking in the lease or any separate Management Contract that leaseholders have signed.


I really appreciate you help with this, thank you!

The lease states "the lessees shall have use of an allocated (numbered xx) parking bay, but this shall not form part of the demised premises". There is no mention of Visitor Parking in the lease, only inferred to as Maintained Property in the Estate Regulations. Visitor Parking is only mentioned specifically as Visitor Parking Bay in the Parking FAQs document. There are no other documents signed by either leaseholder that would infer/mention any permit requirements.

Upon reviewing the documentation, I note with interest the following:

Part Two (Enforceable by Lessor or Manager)
...
3. In using any part of the Development the Lessee shall not:
3.2. contravene any parking or traffic regulation arrangement displayed on notices or which may from time to time be notified to the Lessee in writing by the Lessor
...


I read from this that any "contravention" of the parking or traffic regulation arrangements displayed on notices are therefore enforceable by the Lessor or Manager and not a third party?
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Eljayjay
post Mon, 8 Jan 2018 - 23:54
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I would not necessarily agree with your opinion that enforcement cannot be undertaken by a third party, but the big question here is: has the parking regulation been notified to the Lessee in writing by the Lessor?

If the Lessor did not notify it in writing to you (or your predecessor), then it would seem that you are not bound by it.

I won a residential case in November where, although the managing agents insisted that the parking rules had been in introduced fully in accordance with the lease, it was a pack of lies.

The parking agreement with purported to be signed by a representative of the parking contractor and a director of the Lessor company was, in fact signed by a director of the managing agents falsely describing himself as a director of the Lessor company. In her judgement, the Judge commented that "Mr C is holding himself out as purporting to be a director of [the Lessor company], which he simply is not. She also made a comment that the parking agreement was not signed by enough people as required in Section 44 of the Companies Act 2006. That piece of legislation is over 700 pages long but you can view it for free at legislation.gov.uk.

You can check who the directors of a company are at the Companies House website - if you do, make sure you use the gov.uk version.

My message to you is treat anything documents which you already have or receive in the future with a high degree of scepticism and thoroughly check them out.

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hexaflexagon
post Tue, 9 Jan 2018 - 00:32
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QUOTE (Adzi @ Mon, 8 Jan 2018 - 23:26) *
Upon reviewing the documentation, I note with interest the following:

Part Two (Enforceable by Lessor or Manager)
...
3. In using any part of the Development the Lessee shall not:
3.2. contravene any parking or traffic regulation arrangement displayed on notices or which may from time to time be notified to the Lessee in writing by the Lessor
...


I read from this that any "contravention" of the parking or traffic regulation arrangements displayed on notices are therefore enforceable by the Lessor or Manager and not a third party?


I was just speculating on 3.2. which ElJayJay has also noted. It's a good point but that little word 'or' might be quite significant. Had 3.2 said "...displayed on notices AND ...notified to the Lessee in writing...." then it would have been a strong point in your defence but 'or' seems it may have nullified that.

And the fact that Part Two referrs to "(Enforceable by Lessor or Manager)" might detract from the other otherwise useful point ElJay makes about who is actually enforcing 3.2 in your case. Presumably not the Lessor so the question is who is the 'Manager' here and what exactly is the standing of the 'Manager' in all this. Are there any other paragraphs in the lease which expand on or mention 'Manager'?

This post has been edited by hexaflexagon: Tue, 9 Jan 2018 - 00:33
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Eljayjay
post Tue, 9 Jan 2018 - 01:11
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Good spot, hexaflexagon!

I totally missed "...displayed on notices or...". In truth, I also missed "(Enforceable by Lessor or Manager)".
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nosferatu1001
post Tue, 9 Jan 2018 - 09:19
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Nothign there binds you to contract for a leased right you already have. Nothing there binds you to pay a third party for the right you already had. Nothing there states they can REDUCE THEIR GRANT - which must be executed in writing, signed by both parties, otherwise the lease is still in play.
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hexaflexagon
post Tue, 9 Jan 2018 - 10:04
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QUOTE (nosferatu1001 @ Tue, 9 Jan 2018 - 09:19) *
Nothign there binds you to contract for a leased right you already have. Nothing there binds you to pay a third party for the right you already had. Nothing there states they can REDUCE THEIR GRANT - which must be executed in writing, signed by both parties, otherwise the lease is still in play.


Thanks Nosferatu.

For this purpose I'm going to assume that the term 'Estate Rules' amd 'Estate Regulations' used by the OP are one and the same

So for my benefit, since I'm still learning about all this, as well as Adzi's

Where we have a lease in which parking is not mentioned other than a dedicated allocated space, but which refers (Part 2 section 3.2) to abiding by the Estate Rules in which parking is mentioned in connection with parking in general (presumably both allocated and defined visitor spaces), are you saying that the terms of the Estate rules are not deemed to be an integral part of the signed lease?

In other words picking up your point about 'reducing a grant', is it the case that there is in fact no reduction in grant since the grant of the lease was already subject through the 'abiding by estate rules' clause to a parking condition?

Does it make any difference that the parking regime and signs were apparently in place before the lease was signed?
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nosferatu1001
post Tue, 9 Jan 2018 - 10:07
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If the rules can change, to remove the right to park, then this derogation isnt part of the lease.

It still doesnt bind you to contract to a third party.
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hexaflexagon
post Tue, 9 Jan 2018 - 10:53
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@Adzi,

Somewhat belatedly since I should have mentioned before but have you tried contacting the Lessor/Manager, giving them all the facts and asking whether they will just write to the UK CPM and ask them to cancel the PCN. Their contract with the PPC might have such a clause in it, and if it doesn't you might suggest that when the contract is next renewed they suggest doing so in order to stop this sort of thing happening.

After all the purpose of the parking regime is to prevent parking by those not authorised to park. There is no question that you were authorised and had the permit required, just that it wasn't immediately apparent.
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Adzi
post Tue, 9 Jan 2018 - 11:05
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QUOTE (hexaflexagon @ Tue, 9 Jan 2018 - 10:53) *
@Adzi,

Somewhat belatedly since I should have mentioned before but have you tried contacting the Lessor/Manager, giving them all the facts and asking whether they will just write to the UK CPM and ask them to cancel the PCN. Their contract with the PPC might have such a clause in it, and if it doesn't you might suggest that when the contract is next renewed they suggest doing so in order to stop this sort of thing happening.

After all the purpose of the parking regime is to prevent parking by those not authorised to park. There is no question that you were authorised and had the permit required, just that it wasn't immediately apparent.


The first thing the leaseholder did was to reach out the lessor (Directors via Site Supervisor) however it is apparent from other residents complaints that nothing comes of it although the leaseholder is resilient.

My apologies for the document confusion, the Estate Rules and Estate Regulations are of the same document, officially referenced as Estate Regulations. However, again noted with interest, the Parking FAQs document was executed in writing through provision of the sales pack, however the lessee has not signed any document to confirm receipt of this document and this document is merely a typed and formatted A4 page of Q&A style writing.
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Churchmouse
post Tue, 9 Jan 2018 - 13:35
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QUOTE (Adzi @ Mon, 8 Jan 2018 - 23:26) *
Upon reviewing the documentation, I note with interest the following:

Part Two (Enforceable by Lessor or Manager)
...
3. In using any part of the Development the Lessee shall not:
3.2. contravene any parking or traffic regulation arrangement displayed on notices or which may from time to time be notified to the Lessee in writing by the Lessor
...


I read from this that any "contravention" of the parking or traffic regulation arrangements displayed on notices are therefore enforceable by the Lessor or Manager and not a third party?

Enforceable how? Lead pipes applied to kneecaps? Is there any discussion about the enforcement mechanisms available to the Lessor or Manager? Enforcing the terms of a lease is usually not the same thing as forcing someone to enter into a contract with a third party.

--Churchmouse
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hexaflexagon
post Tue, 9 Jan 2018 - 14:14
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So picking up Nosferatu's points, i understand him to be saying, no doubt he'll clarify.

A change such as removing some right from the lease (a derogation) is outside the lease and can't affect it.
I'm still not clear whether in this case anything is being removed from the lease.
The right to park is still there albeit restricted by a condition to display a permit. But is this condition effectively part and parcel of the original signed lease by virtue of the lease referring to the Estate Regulations which do allude to a parking condition about displaying a permit?

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nosferatu1001
post Tue, 9 Jan 2018 - 14:44
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Its more than that
Theyre claiming you have to contract with someone to park there. Thats the entire basis of the PPCs model. However if you already have the right to park there, what are they offering? And if the lessor is claiming you no longer have the right to park there, then THAT is a derogation!
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hexaflexagon
post Tue, 9 Jan 2018 - 14:47
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QUOTE (nosferatu1001 @ Tue, 9 Jan 2018 - 14:44) *
Its more than that
Theyre claiming you have to contract with someone to park there. Thats the entire basis of the PPCs model. However if you already have the right to park there, what are they offering? And if the lessor is claiming you no longer have the right to park there, then THAT is a derogation!


OK, got it. Thanks for the clarification. smile.gif
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