UKPC POLA appeal - No permit displayed

bigdogsrock · 27 June 2015 at 12:28PM

Hi,

The story so far - I have reached the POPLA appeal stage of a PNC sent to me as Registered Keeper, for parking without displaying a valid permit.

A ticket for the required parking period had been purchased and displayed (a photo of this is shown on the NtK)
A Parking Charge was placed on the vehicle for "not displaying a valid permit"
As I was not the driver, or even present, I don't know the details of this car park ie Permit holders only/P&D (Curzon St in Birmingham), but clearly there was a P&D machine.
The initial appeal has been rejected and I have a week left to appeal to POPLA.

I've been getting very confused reading through all of the threads on here but have come to the point where time is running out and I need to formulate an appeal letter.

I have looked at some of the examples and know to keep to legalities rather than mitigation. I will post my letter for comments prior to sending it but wondered if, based on the details above, anyone had any specific advice for content/omissions.

Many thanks in advance!

fisherjim · 27 June 2015 at 1:37PM

I am confused too, how can you appeal this, or expect help when you have no idea what the circumstances are?

bigdogsrock · 28 June 2015 at 10:45PM

Sorry if I didn't make myself clear, let me try to explain as I have now managed to get more information...

It seems the car park was P&D or permit only. It was not clear where the permit only spaces were as the lines were faded. A P&D ticket was purchased and displayed but the PNC given for parking without a permit, suggesting, I guess, that the car was parked in a permit-only space. I have been assured that the line markings were not clear to denote P&D/Permit only spaces.

In answer to your question, I had appealed it fully expecting it to be rejected at the first stage, but based on what I have read on here, even people who have knowingly "broken the rules" have successfully appealed. I therefore thought it was worth a try but have got confused reading the threads because there are so many different scenarios, and the further along the process you get, the more complex it becomes. I'm sure you can appreciate this.

I came on here asking for advice, that was all. If you feel you cannot help, it may be better to just not reply. However any constructive advice would be appreciated.

Thank you.

Umkomaas · 28 June 2015 at 11:19PM

So, if you've received a POPLA code, you need to do the following:

a. Check its validity and expiry date here:

http://www.parkingcowboys.co.uk/popla-code-checker/

b. Draft your POPLA appeal on the following basis:

There's no standard text as such, but your appeal needs to cover the following:

1. No keeper liability (but you need to check the NtK for correct dates and all requirements of PoFA have been included)
2. Signage
3. No Contract with landowner to pursue charges in their own name at court
4. No proprietary interest in the land
5. Unlawful Penalty Charge
6. ANPR Accuracy (if appropriate)
7. No genuine pre-estimate of loss (GPEOL)

Read very carefully post # 3 of the NEWBIES FAQ sticky - it contains very recent information important to your appeal.

There are plenty of examples of winning POPLA appeals across the forum; here are a couple of links for you to follow and research:

How to win at POPLA:

http://forums.moneysavingexpert.com/...1&postcount=15

POPLA Decisions sticky:

http://forums.moneysavingexpert.com/....php?t=4488337

Read from the most recent backwards to get a feel for the appeal points on which POPLA Assessors are currently upholding appeals.

I came on here asking for advice, that was all. If you feel you cannot help, it may be better to just not reply.

No need!

All the regulars here (including fisherjim) are trying to help you with your problem. It's best not to suggest that those who really can help shouldn't bother to reply to you. There's not that many of us!

bigdogsrock · 30 June 2015 at 12:33AM

Many thanks for your response. I have taken all of your points on board and have drafted a letter to send. If anyone has time to read through it for comment I would very much appreciate it.

Can anyone tell me the best way to send it? ie recorded RM delivery or email?

Thanks again, letter below...

I am the registered keeper of the vehicle and I appeal the above PNC on the following grounds. I would ask that all points are taken into consideration:

I am the registered keeper of the vehicle and as such, I appeal the above PCN on the following grounds. I would ask that all points are taken into consideration:

1.The Charge is not a genuine pre-estimate of loss (GPEOL)
The correct charge for the period in question was paid in full. The parking contravention charge is out of all proportion to any potential loss on the part of UKPC and therefore does not represent a genuine pre-estimate of loss. There is no dispute that the driver did in fact pay the amount required to cover the period of parking.
As the charge in this case is the same lump sum charged for any alleged ‘breach’ (e.g. irrespective of whether the vehicle is parked for 10 minutes or 24 hours or had received permission from the individual entitled to authorise parking in this designated parking bay etc) it is clear the charge is a punitive measure and no consideration has been given to calculating a genuine pre estimate of loss in this case.
UKPC sign states the charge is for 'not fully complying with the conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park was not even full at the time of the alleged offence. This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all. As was found by District Judge Charles Harris QC in 'A Retailer v Ms B' (a case which turned on whether there was a loss to pursue from a consumer) no staff have been 'significantly diverted' from their duties. In this case, issuing a PCN and then handling appeals is a part of UKPC salaried staff's normal day to day activity, so staffing costs/NI contributions cannot be properly included in a loss statement.
Only 1% of cases go to POPLA, so the cost of a POPLA appeal is far too remote to include in a GPEOL statement set before parking events occur. The possibility of the POPLA route is rarer even than the debt collector route, so it cannot have been in the reasonable contemplation of UKPC when setting the level of 'charge' that POPLA costs would flow from an average parking event. As a matter of policy, POPLA Assessors do not allow debt collection costs to be included in a GPEOL because most cases do not follow that route. The same applies to 'POPLA costs', as was found by Nadesh Karunairetnam in ref 4212674003 in November 2014:
In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred to either the Operator or to the Landowner. I would also refer them to the Unfair Terms in Consumer Contract Regulations, which states parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there. I remind them that the amount in this case is nothing.

2) Lack of standing/authority from landowner
I believe that UKPC has no title in this land and no British Parking Association (BPA)- compliant landowner contract assigning rights to charge and enforce in the courts in their own right.
BPA Code of Practice (CoP) paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put UKPC to strict proof of the contract terms with the actual landowner (not a leasee or agent). UKPC have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have open licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that UKPC are entitled to pursue these charges in their own right.
I require UKPC to provide a full copy of the contemporaneous, signed & dated contract with the landowner. I believe that any contract is not compliant with the requirements set out in the BPA CoP and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landowner such as another agent. In order to comply with paragraph 7 of the BPA CoP, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.
Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA CoP to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.
In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provides a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

3) Non-compliant Notice to Keeper (NtK)- no keeper liability established under Protection of Freedoms Act 2012
The following points may be observed on the NtK, making this a non-compliant NtK under the POFA 2012, Schedule 4 para 8:
a. The 'period of parking' is not shown, (as required by POFA 12 Schedule 4 paras 8(2)(a) and 8(2)(b)); only the “issue time” and “time first seen” are shown.
b. It does not repeat the information on the parking charge notice (as required by POFA 12 Schedule 4 para 8(2)(c))
c. It does not identify the creditor (as required by POFA 12 Schedule 4 para 8(2)(h)).
d. The ‘date on which the notice is sent’ is not explicit (as required by POFA Schedule 4 para 8(2)(i)).
The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NtK is compliant. A NtK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 and the mandatory detail and wording to ensure a NtK is compliant are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out the mandatory NtK wording will result in no 'keeper liability'.

4) Unreasonable/Unfair Terms
I would assert that the charge being claimed by UKPC is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999': ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''
18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.
Test of fairness:
''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.
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 fulfil 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".
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.”
5.1 Unfair terms are not enforceable against the consumer.
9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''
I contend it is wholly unreasonable to attempt to profit by charging a disproportionate sum where no loss has been caused by a driver who has proved they paid the tariff and displayed the ticket in good faith. I put UKPC to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

5. No visual evidence of the alleged contravention provided
Beyond the assertion of the UKPC parking attendant, no evidence has been provided by UKPC (i.e. a photograph of the vehicle parked in a clearly identifiable permit-only space) to support the PCN they have issued. In this case the onus surely falls to UKPC to provide sufficient evidence to prove that the claimed breach of their terms and conditions took place. I contend the driver paid and displayed a valid ticket for the parking period and parked in a bay that was not clearly identifiable as being a permit-only space and therefore no contravention occurred.

6. Signage - not compliant with the BPA Code of Practice (CoP) and was not seen before parking
I submit that this signage failed to comply with the BPA CoP section 18 and appendix B and was therefore not seen by the driver on entering the car park, meaning that no contract was entered into. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away after parking, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) UKPC had no signage with full terms which could be readable at eye level, for a driver in a moving vehicle on arrival at the car park.
The BPA CoP October 2014 clearly states "Specific parking terms signage tells drivers what [the] terms and conditions are, including parking charges. [The Operator] must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle... Keep a record of where all the signs are... Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand".
I assert that being unable to read the detail on the sign visible on entry and parking, breaches this code. There are no signs in the relevant locations on the development. I therefore require the Operator to submit evidence of the signage in the form of site maps and photographs, clearly indicating the location and height of said signage at the time of the alleged breach.

I request that my appeal is upheld and for POPLA to inform UKPC to cancel the PCN. I believe the charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there are no other grounds upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.

Redx · 30 June 2015 at 12:51AM

hope you dont have mild dyslexia like me, loads of typos and spelling mistakes in it , apologies beforehand, but it needs to be right and you did ask

ITS

PCN (not pnc)

GPEOL - (Genuine pre estimate of loss) - use the full terminology, plus the abbreviation

POPLA (not POLA) - thread title

you have too many parking companies listed , ukpc , ncp and maybe others, check and amend

it should be appealed on the POPLA WEBSITE by attaching it as a word doc or a pdf, plus attaching any evidence too , like pictures of signage if in your favour

if you dont know how to send it, you have not read the POPLA website properly (or at all)

bigdogsrock · 30 June 2015 at 11:02AM

Thank you. Much appreciated. Will correct all errors, I don't have dyslexia, it's the wonders of copy & paste and trying to proof read at 1am! The thread title was a genuine typo though.

Does the general content seem OK though?

Will recheck POPLA website (!) and send accordingly.

Redx · 30 June 2015 at 11:11AM

its reasonable once ALL errors are corrected , especially the ones where you name a parking company , but had two different companies listed (like tesco and asda)

bigdogsrock · 30 June 2015 at 11:37AM

Thanks,

I've made amendments and cut/pasted the new version into my previous post (thought it best to remove the error-ridden one).

I have to leave for work now so will check back later to see if there are any additional comments.
I have until the end of the week to submit it.

Redx · 30 June 2015 at 12:35PM

move point 1 to below point 6

then renumber them so not a gpeol becomes 6) and lack of authority is 1)

this is so not a gpeol comes last, just above the last paragraph which neatly flows from it

the idea is to get a decision based on the other points if possible, as gpeol would come under the Beavis case and so could be months from a decision based on not a gpeol

so gpeol needs to be the last point, just above the "I request" paragraph in blue from the newbies sticky thread

otherwise I dont see anything else that is obvious, others may do though, so wait for more replies , just in case

Umkomaas · 30 June 2015 at 5:45PM

Seems ok to me. A bit long-winded on the GPEOL front - the bits about what UKPC have included in their GPEOL in the past, may not be included currently. It looks very much a copy and paste job from a rather old example. It's not critical to remove it, it will just look a bit tidier and current.

The time to rebut what the GPEOL is based on will be when UKPC declare their hand in their Evidence Pack. But I rather suspect they will argue that GPEOL is no longer applicable, because Beavis lost at the CoA. That opens you the opportunity to debunk that half-truth as it's going on appeal to the Supreme Court!

It's good to go (with or without the tidying up).

UKPC POLA appeal - No permit displayed

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