POPLA Decisions

privateparkingchanges

[FONT=&quot]Hi all[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Thanks for everyone’s help, I have won my POPLA appeal [/FONT]

The Operator issued parking charge notice number xxxx arising out of a presence on private land, of a vehicle with registration mark xxxxx.
The Appellant appealed against liability for the parking charge.
The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.
The Assessor’s reasons are as set out.
The Operator should now cancel the parking charge notice forthwith.[FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]

---

[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The letter I sent:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Re: Vinci Park Services UK Ltd, PCN No. xx

xx/xx/2014

POPLA Code: [/FONT][FONT=&quot]91xx[/FONT][FONT=&quot]

VRN: xxxxxx

I am the keeper of this vehicle and this is my appeal.

On the above date, the quoted Parking Charge Notice was issued quoting “Failing to fully display valid permit”. This charge has been contested directly with Vinci Park Services with the allowed 28 days to notice to keeper and rejected, Vinci Park Services claimed the appeal was outside of the allowed 28 days. The case was forwarded to a debt collection agency. The BPA corrected the matter and provided me with a valid POPLA code.

I contest the charge and request it is dismissed on the following grounds:

1. No genuine pre-estimate of loss

2. Vinci Park Services have formed no contract with the driver (no consideration/acceptance)

3. Lack of standing/authority from landowner to issue tickets or pursue charges in their own name at court

4. Signage non compliant with the BPA Code of Practice [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]5. Unfair terms


1) NO GENUINE PRE-ESTIMATE OF LOSS
The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could possibly have been suffered by the Landowner or the Operator.

Vinci Park Services must therefore be required to explain their charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so Vinci Park Services have no cause of action to pursue this charge.

I specified in my original appeal that I would like to see a breakdown of the costs incurred by Vinci Park Services as a result of the alleged breach. Vinci Park Services have failed to provide this information, stating that the charge is in line with BPA guidelines and therefore “deemed reasonable”. This reply completely fails to demonstrate that the whole charge is a genuine pre-estimate of loss. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge can “cannot be punitive or unreasonable”.

I put it to Vinci Park Services to prove that a loss has occurred at the time that this charge was levied and Vinci Park Services submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach, such that the charge is a genuine pre-estimate of loss. Considering the alleged offence took place outside of usual business hours for Acorn House, the damages suffered would not equate to the sum of £100.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I find that the operator has not provided evidence of an initial loss, which is a loss incurred prior to enforcement action being taken, such as the loss of the parking fee in the case of a pay and display car park where no ticket was purchased.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The parking charge must be an estimate of reasonable losses in order to be enforceable. Accordingly, any consequential loss must be based on an initial loss, and any heads claimed for must be in the reasonable contemplation of the parties at the time of issue of the parking charge notice.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Once such a loss is shown, actual losses flowing from it may be claimed, but without such a loss that is not the case. Whilst the losses stated by the operator may well flow from a breach, an initial loss must be shown in order to claim costs in respect of them.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]As an initial loss must be shown in order for a charge to constitute a genuine pre-estimate of loss, the operator has failed to show that the charge is a genuine pre-estimate of loss. Therefore I feel the charge notice is invalid.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]2) VINCI PARK SERVICES HAVE NO CONTRACT WITH THE DRIVER OF THE VEHILE; no consideration nor acceptance has flowed between the parties so the elements of a contract do not exist. The issue of a staff parking permit and parking privileges is strictly between the employer and staff member and is the only extant contract relating to parking this car on this site by this driver. Despite what they may say, VINCI cannot re-offer the same parking space on different terms and allege a charge is due when there has been no loss suffered and the driver is permitted to park there. VINCI signs in this car park are sparse and unclear, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance. A lack of signs at the entrance to a car park, and unclear wording, is a breach of the BPA Code of Practice and creates no contract.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Vinci Park Services Ltd 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 a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents for the Operator. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]
3) LACK OF STANDING/AUTHORITY FROM LANDOWNER TO ISSUE TICKETS OR PURSUE CHARGES IN THEIR OWN NAME AT COURT[/FONT]
[FONT=&quot]
Vinci Park Services have no proprietary interest in the land concerned and have not responded to a request for a copy of the contract with the landowner in which authority to pursue outstanding parking charges is set out in section 7.2 paragraph (f): “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed. In the absence of this evidence, I believe that Vinci Park Services do not have the legal capacity to enforce such a charge.

I require the unredacted landowner contract including any payments made between the parties, names & dates & details of all terms included. I suspect Vinci Park Services are merely an employed site agent and this is nothing more than a commercial agreement between the two parties. There is nothing that could enable Vinci Park Services to impact upon visiting drivers in their own right, for their own profit. For the avoidance of doubt, I will not accept a mere “witness statement” or site agreements instead of the relevant contract, 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-landholder such as another agent. There would be no proof that the alleged signatory can act on behalf of the landowner or has ever seen the relevant contract. Also a letter or statement would fail to show any payments made between the parties, and would omit dates & details of all terms in the actual contract - and so would fail to rebut my appeal point about the Operator's lack of standing & assignment of any rights.[/FONT]
[FONT=&quot]
4)[/FONT] [FONT=&quot]SIGNAGE NON COMPLIANT WITH THE BPA CODE OF PRACTICE
Upon receiving the Parking Charge Notice, I, as keeper of the vehicle, have since visited the site and argue the following :

4.1) I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B.. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because Vinci Park Services are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). 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, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) Vinci Park Services have no signage with full terms which could ever be read at eye level, for a driver in moving traffic on arrival. The signs on entry are up on poles with the spy cameras attached and these cannot be read by a driver in their vehicle entering the car park. Stopping the vehicle before entering the car park to get out and read these is completely infeasible as this would cause an obstruction on a public highway and block the entrance to the car park.

4.2) A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. In this case, the driver did not see any sign, thus, there was no consideration/acceptance and no contract agreed between the parties.
As a POPLA Assessor has said previously in an adjudication:
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.
Vinci Park Services needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA Assessor would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding.[/FONT]
[FONT=&quot]
5) UNFAIR TERMS
The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘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.’

Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair”
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.”
5(1) ''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. (2) 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.''

From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a 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.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'

I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss. [/FONT]
[FONT=&quot]I therefore respectfully request that my appeal is upheld and the charge is dismissed on the reasons I have stated in this appeal.[/FONT]
[FONT=&quot]
Kind regards[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]xxx[/FONT]

bod1467

Whilst it's all well and good posting the POPLA appeal submission, the focus of this thread is POPLA results, so the POPLA letter is what's best to show.

ampersand

It would be wonderful if anyone who feels this Forum has helped them see off a private parking scumpany, would consider contributing to Mr Beavis's Appeal costs.

Bargepole posted about it here:
Beavis appeal fund launched
https://forums.moneysavingexpert.com/discussion/5226682



and it can also be seen on parking prankster's blog here:

http://parking-prankster.blogspot.co.uk/2015/04/barry-beavis-launches-fund-to-finance.html;
#
Pour encourager les autres -
[pinged 30 secs ago]
£1,770GBP
raised by 80 people in 10 hours
30% funded
31 days left

fillyaboots

Hi,
Firstly, thanks to all on this site that helped with my appeal.
:T:T:T:T:T:T:T
Yes I won my POPLA appeal.


24 April 2015
Reference xxxxxxxxxx
always quote in any communication with POPLA
Dear Sir or Madam
Mr fillyaboots(Appellant)
-v-
ANPR Ltd (Operator)
The Operator has informed us that they have cancelled parking charge notice number XXXXXXX, issued in respect of a vehicle with the registration mark XXXXXXX .
Your appeal has therefore been allowed by order of the Lead Adjudicator.
You are not liable for the parking charge and, where appropriate, any amounts already paid in respect of this parking charge notice will be refunded by the Operator.
Yours sincerely,
Richard Reeve
Service Manager

Also the BPA replied to me, stating, that they had kicked them out after I had appealed to them.

Mike172

Another 2 appeals to POPLA against UKCPM allowed this morning.

Usual - UKCPM didnt submit any evidence.

Some great news as well - Ive got another NTK (my 7th) in the post which is excellent because I thought I was whitelisted.

neil.net

UKPC bottled it...


neil.net (Appellant)
-v-
UK Parking Control Limited (Operator)

The Operator issued parking charge notice number XXXX arising out of a presence on private land, of a vehicle with registration mark XXXX XXX.

The Appellant appealed against liability for the parking charge.

The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.

The Assessor’s reasons are as set out.

The Operator should now cancel the parking charge notice
forthwith.


Reasons for the Assessor’s Determination

It is the Appellant’s case that the parking charge notice was issued incorrectly.

The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.

Accordingly I have no option but to allow the appeal.

XXXXXX
Assessor

debsydoodah

privateparkingchanges wrote: »

[FONT=&quot]Hi all[/FONT]

[FONT=&quot]Thanks for everyone’s help, I have won my POPLA appeal [/FONT]

The Operator issued parking charge notice number xxxx arising out of a presence on private land, of a vehicle with registration mark xxxxx.
The Appellant appealed against liability for the parking charge.
The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.
The Assessor’s reasons are as set out.
The Operator should now cancel the parking charge notice forthwith.

[FONT=&quot]

---

[/FONT]

[FONT=&quot]The letter I sent:[/FONT]

[FONT=&quot]Re:Vinci Park Services UK Ltd, PCN No. xx[/FONT]

[FONT=&quot]xx/xx/2014[/FONT]

[FONT=&quot]POPLA Code: [/FONT][FONT=&quot]91xx[/FONT]

[FONT=&quot]VRN: xxxxxx[/FONT]

[FONT=&quot]I am the keeper of this vehicle and this is my appeal. [/FONT]

[FONT=&quot]On the above date, the quoted Parking Charge Notice was issued quoting “Failing to fully display valid permit”. This charge has been contested directly with Vinci Park Services with the allowed 28 days to notice to keeper and rejected, Vinci Park Services claimed the appeal was outside of the allowed 28 days. The case was forwarded to a debt collection agency. The BPA corrected the matter and provided me with a valid POPLA code. [/FONT]

[FONT=&quot]I contest the charge and request it is dismissed on the following grounds:[/FONT]

[FONT=&quot]1. No genuine pre-estimate of loss[/FONT]

[FONT=&quot]2. Vinci Park Services have formed no contract with the driver (no consideration/acceptance)[/FONT]

[FONT=&quot]3. Lack of standing/authority from landowner to issue tickets or pursue charges in their own name at court[/FONT]

[FONT=&quot]4. Signage non compliant with the BPA Code of Practice [/FONT]

[FONT=&quot]5. Unfair terms[/FONT]


[FONT=&quot]1) NO GENUINE PRE-ESTIMATE OF LOSS[/FONT]
[FONT=&quot]The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could possibly have been suffered by the Landowner or the Operator.[/FONT]

[FONT=&quot]Vinci Park Services must therefore be required to explain their charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so Vinci Park Services have no cause of action to pursue this charge.[/FONT]

[FONT=&quot]I specified in my original appeal that I would like to see a breakdown of the costs incurred by Vinci Park Services as a result of the alleged breach. Vinci Park Services have failed to provide this information, stating that the charge is in line with BPA guidelines and therefore “deemed reasonable”. This reply completely fails to demonstrate that the whole charge is a genuine pre-estimate of loss. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge can “cannot be punitive or unreasonable”.[/FONT]

[FONT=&quot]I put it to Vinci Park Services to prove that a loss has occurred at the time that this charge was levied and Vinci Park Services submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach, such that the charge is a genuine pre-estimate of loss. Considering the alleged offence took place outside of usual business hours for Acorn House, the damages suffered would not equate to the sum of £100.[/FONT]

[FONT=&quot]I find that the operator has not provided evidence of an initial loss, which is a loss incurred prior to enforcement action being taken, such as the loss of the parking fee in the case of a pay and display car park where no ticket was purchased.[/FONT]

[FONT=&quot]The parking charge must be an estimate of reasonable losses in order to be enforceable. Accordingly, any consequential loss must be based on an initial loss, and any heads claimed for must be in the reasonable contemplation of the parties at the time of issue of the parking charge notice.[/FONT]

[FONT=&quot]Once such a loss is shown, actual losses flowing from it may be claimed, but without such a loss that is not the case. Whilst the losses stated by the operator may well flow from a breach, an initial loss must be shown in order to claim costs in respect of them.[/FONT]

[FONT=&quot]As an initial loss must be shown in order for a charge to constitute a genuine pre-estimate of loss, the operator has failed to show that the charge is a genuine pre-estimate of loss. Therefore I feel the charge notice is invalid.[/FONT]

[FONT=&quot]2) VINCI PARK SERVICES HAVE NO CONTRACT WITH THE DRIVER OF THE VEHILE; no consideration nor acceptance has flowed between the parties so the elements of a contract do not exist. The issue of a staff parking permit and parking privileges is strictly between the employer and staff member and is the only extant contract relating to parking this car on this site by this driver. Despite what they may say, VINCI cannot re-offer the same parking space on different terms and allege a charge is due when there has been no loss suffered and the driver is permitted to park there. VINCI signs in this car park are sparse and unclear, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance. A lack of signs at the entrance to a car park, and unclear wording, is a breach of the BPA Code of Practice and creates no contract.[/FONT]

[FONT=&quot]Vinci Park Services Ltd 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 a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents for the Operator. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.[/FONT]


[FONT=&quot]3) LACK OF STANDING/AUTHORITY FROM LANDOWNER TO ISSUE TICKETS OR PURSUE CHARGES IN THEIR OWN NAME AT COURT[/FONT]

[FONT=&quot]Vinci Park Services have no proprietary interest in the land concerned and have not responded to a request for a copy of the contract with the landowner in which authority to pursue outstanding parking charges is set out in section 7.2 paragraph (f): “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed. In the absence of this evidence, I believe that Vinci Park Services do not have the legal capacity to enforce such a charge.[/FONT]

[FONT=&quot]I require the unredacted landowner contract including any payments made between the parties, names & dates & details of all terms included. I suspect Vinci Park Services are merely an employed site agent and this is nothing more than a commercial agreement between the two parties. There is nothing that could enable Vinci Park Services to impact upon visiting drivers in their own right, for their own profit. For the avoidance of doubt, I will not accept a mere “witness statement” or site agreements instead of the relevant contract, 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-landholder such as another agent. There would be no proof that the alleged signatory can act on behalf of the landowner or has ever seen the relevant contract. Also a letter or statement would fail to show any payments made between the parties, and would omit dates & details of all terms in the actual contract - and so would fail to rebut my appeal point about the Operator's lack of standing & assignment of any rights.[/FONT]

[FONT=&quot]4)[/FONT] [FONT=&quot]SIGNAGE NON COMPLIANT WITH THE BPA CODE OF PRACTICE[/FONT]
[FONT=&quot]Upon receiving the Parking Charge Notice, I, as keeper of the vehicle, have since visited the site and argue the following :[/FONT]

[FONT=&quot]4.1) I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B.. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because Vinci Park Services are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). 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, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) Vinci Park Services have no signage with full terms which could ever be read at eye level, for a driver in moving traffic on arrival. The signs on entry are up on poles with the spy cameras attached and these cannot be read by a driver in their vehicle entering the car park. Stopping the vehicle before entering the car park to get out and read these is completely infeasible as this would cause an obstruction on a public highway and block the entrance to the car park. [/FONT]

[FONT=&quot]4.2) A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. In this case, the driver did not see any sign, thus, there was no consideration/acceptance and no contract agreed between the parties.[/FONT]
[FONT=&quot]As a POPLA Assessor has said previously in an adjudication:[/FONT]
[FONT=&quot]“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.[/FONT]
[FONT=&quot]Vinci Park Services needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA Assessor would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding.[/FONT]

[FONT=&quot]5) UNFAIR TERMS [/FONT]
[FONT=&quot]The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘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.’[/FONT]

[FONT=&quot]Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 : [/FONT]
[FONT=&quot]Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair” [/FONT]
[FONT=&quot]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.” [/FONT]
[FONT=&quot]5(1) ''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. (2) 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.''[/FONT]

[FONT=&quot]From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':[/FONT]
[FONT=&quot]Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:[/FONT]
[FONT=&quot]5.1 “It is unfair to impose disproportionate sanctions for a 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.”[/FONT]
[FONT=&quot]Group 18(a): Allowing the supplier to impose unfair financial burdens[/FONT]
[FONT=&quot]'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.[/FONT]
[FONT=&quot]19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'[/FONT]

[FONT=&quot]I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss. [/FONT]
[FONT=&quot]I therefore respectfully request that my appeal is upheld and the charge is dismissed on the reasons I have stated in this appeal.[/FONT]

[FONT=&quot]Kind regards[/FONT]

[FONT=&quot]xxx[/FONT]


Can we please see a copy of the outcome letter from POPLA on this? Am in the same position with Vinci and am a permit holder as well - thanks

Redx

a forum win here against UKPC for the Metro Centre , Gateshead

no contract

https://forums.moneysavingexpert.com/discussion/5142727

debs1505

Thanks to everyone for their help ..... We won against Ukpc. Thank you all

basically the letter from popla states


The appellant has made a number of submissions which I do not intend to deal with and will only elaborate on the reason why I am allowing this appeal, namely that the operator does not have the authority from the landowner to issue parking charge notices.

The appellant has asked to see proof that the operator has the authority to issue parking charges. The operator has failed to provide a copy of the contract between themselves and the landowner to show that they have the authority to issue parking charge notices and therefore I have no evidence before me to refute the appellants submission . The onus is on the operator to prove their case against the appellant and on this occasion they have not done so. Accordingly, this appeal must be allowed.

The operator should cancel the parking charge forthwith

atilla

POPLA appeal x 2

Not So Smart Parking

"The Operator issued parking charge notice number XXXXXXX arising out of a presence on private land, of a vehicle with registration mark AB12CDE
The Appellant appealed against liability for the parking charge.
The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.
The Assessor’s reasons are as set out.
The Operator should now cancel the parking charge notice forthwith.

Reasons for the Assessor’s Determination
It is the Appellant’s case that the parking charge notice was issued incorrectly.
The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.
Accordingly I have no option but to allow the appeal.

Shehla Pirwany
Assessor "

A definite change of tack with them since the new bloke moved into the top job.
No popla code for years from them now getting them thick and fast. Just cost him £54.
Best get on with filling in my next tranche of appeals.