Is it worth me appealing to POPLA?

Well that is what I hoped someone would say

I guess I assumed that because I was parking in the wrong bay I was in the wrong.

I appealed to the PPC already and was rejected and I have a POPLA reference.

I'll draft a POPLA letter from the templates and copy it up here as soon as I can.

Thanks

Ok this is my first draft, built from the sample documents in the Newbies post

Criticisms and feedback welcomed!

Charge Reference:
Vehicle Registration:
Date & Time of issue:
Location:

To POPLA,
I received a parking charge notice from Private Parking Solutions (London) Ltd whilst unloading belongings to my newly purchased flat. For the reasons outlined below I would like to appeal and contest the charge.

NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS

There was no parking charge levied, the car park is private and residential. On the date and time of the claimed loss it was at less than 50% capacity and there was no physical damage caused. There can have been no loss arising from this incident. Neither can Private Parking Solutions (London) Ltd lawfully include their operational day-to-day running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.
CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES

Private Parking Solutions (London) Ltd do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, Private Parking Solutions (London) Ltd have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

I would also request that POPLA please check whether Private Parking Solutions (London) Ltd have provided a full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier (not just a signed slip of paper saying it exists or someone has witnessed it) and check that it specifically enables this Operator to pursue parking charges in their own name and through the court system. I would also want to see evidence of this. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.
I also request that Private Parking Solutions (London) provide POPLA and myself with a copy of the wording of the current imposed permit scheme with proof that the landowner has agreed to/been informed about it as well as a current map of all the areas and bays of that car park where the permit scheme is and is not applicable, as agreed with the landowner.
Finally I request that Private Parking Solutions (London) supply POPLA and myself with contemporaneous photos of the actual signs on site taken from the view of the driver of a car where the car in question was parked.

I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.

Furthermore, I require that Private Parking Solutions (London) Ltd show POPLA proof that they have the right to charge and pursue motorists (including threats of debt recovery and court action) as the parking charge notice makes no reference to the landowner at all implying that Private Parking Solutions (London) Ltd owns the land.


UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE

Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, understand and no notices at all are positioned near the entrance or exists to any of the shops.

I contend that the signs and any core parking terms Private Parking Solutions (London) Ltd are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])

UNLAWFUL PENALTY CHARGE

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a residential car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

NO CONTRACT WITH THE DRIVER

There is no contract between Private Parking Solutions (London) Ltd and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.

UNFAIR TERMS

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, 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" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term."
UNREASONABLE

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.”

SUMMARY

On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.

Yours faithfully