Parking Help needed pleae

wagtails

Hello ok so now we have our NTK what next?

Umkomaas

wagtails wrote: »

Hello ok so now we have our NTK what next?

What did your research tell you over the past month - as many of the previous posters suggested you needed to do?

Have you decided on which initial points of challenge you intend going back to the PPC on?

Did you come across the term 'soft appeal' in your research? This is what you need to send to the PPC now. It needs to include your points of challenge and a request for a POPLA code in the (likely) event that your appeal to the PPC is rejected.

In your NtK was there a place in it where 'The Creditor' was identified. Words such as 'The Creditor is.........'?

Would you also just check that no fewer than 28 days elapsed between your parking event and the receipt of your NtK? Also confirm that the NtK was received no more than 56 days after your parking event?

wagtails

hello so I hope I have done my homework correctly (?)

My main basis of challenge is: My Company pays for office space and additionally pays for 14 parking spaces from a management company (presumably the land owners?) I parked in 1 these allocated spaces and on the day in question being a Saturday only 2other colleagues where parked in these spaces, therefore there were 11 unoccupied spaces. I have full permission from my management to park there; the only thing I did wrong was forget to display my visitor parking ticket. There was no loss to the landowner (as these spaces have already been paid for) or my company as I was suppose to park there and I was not stopping anyone else from doing so.

There is no mention of a creditor in the NTK the nearest is the line ' PCM as agents of the landowner, has the right to seek payment of this parking charge. '

PCM have issued the charge following a breach of the contractual terms and conditions ‘Parked without clearly displaying a valid PCM UK Ltd permit (at time of enforcement)

So this is my letter using all the infor and advice given to me I hope, what do you think? Is this ok?




Dear PCM

I am writing to you regarding your parking charge notice xxxxxxxxx for vehicle xxxx issued xxxxxxx.

The registered keeper of the vehicle denies any liability for this unenforceable charge. The driver had express permission to park in an a space which has been allocated to and paid for by the company they work for, and as a third party agent you cannot possibly also offer consideration of parking spaces when they have already been offered by the occupier. Nor can you claim or show any loss so it is clear your charge is punitive and unenforceable in law; I am sure POPLA will agree when I send them my detailed submission if you do not cancel PCM.

Please accept this as my challenge to your parking charge notice and cancel the charge or issue me with a POPLA validation code within 35days as per the BPA code of Practice.

wagtails

I forgot to metion that they have sent the NTK with in the time limits.

Umkomaas

wagtails wrote: »

I forgot to metion that they have sent the NTK with in the time limits.

Your initial appeal to the PPC is good enough to generate the automatic rejection. Whatever you put in the appeal it is virtually guaranteed to be rejected, I actually think your appeal is very good and you've obviously done some homework (wish every OP would get themselves as well prepared - sigh).

So the main purpose of this appeal is a POPLA code so you can get down to the business end of dealing with this.

I expect you will have already started looking at previous POPLA appeals and decisions, so keep us updated on outcome of first appeal and look forward to seeing the first draft of your POPLA appeal.

wagtails

Thank you :O)

Fingers crossed I can impress you with my POPLA appeal letter now for the hard work!

Umkomaas

wagtails wrote: »

Thank you :O)

Fingers crossed I can impress you with my POPLA appeal letter now for the hard work!

Way to go!! (hat tip to our Mayflower ancestors :rotfl:). How did they manage to come up with his stuff?

Coupon-mad

wagtails wrote: »

Thank you :O)

Fingers crossed I can impress you with my POPLA appeal letter now for the hard work!

Advance reading about strong POPLA appeals and what to include:

https://forums.moneysavingexpert.com/discussion/comment/62180281#Comment_62180281

https://forums.moneysavingexpert.com/discussion/comment/62523345#Comment_62523345

HTH

wagtails

Hello, well still waiting for PCM to response to my appeal and send my POPLA code. So in the mean time I have been researching POPLA appeals and have cobbled together the following which I hope is a good start to my POPLA appeal. It has been quite difficult as the signage is good and clear with the only condition of parking to display a ticket which I did not.

Anyway what do you think of the following, all help gratefully received as I am not good at this type of thing and not sure if I have rambled a bit?



On the [date], PCM issued a parking charge notice because the above vehicle was allegedly Parked with out displaying a valid PCM permit


1. The amount of the charge is disproportionate to the loss incurred by PCM Ltd and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to be a penalty because PCM Ltd have alleged a breach of terms and conditions and yet have not quantified their alleged loss (which cannot include business running costs nor the POPLA fee).

2. The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver." In this case, PCM have failed to provide any calculation to show how the £100 figure is arrived at, whether as an actual or pre-estimated loss. It is the Appellant's position that PCM has suffered no loss whatsoever in this case, as the parking spaces are-paid for in the lease agreement by the occupiers of the office space and the driver also had the express permission of the occupiers to park in one of these spaces, where on the day in question on 3 of 14 allocated spaces were occupied. (see letter attached from the occupier confirming this and supporting this appeal.

3. The sum claimed cannot be a genuine pre-estimate of loss, as any contractual breach attracts the exact same apparent amount of loss, whether no permit was displayed or a car was parked over a white line. If the sum claimed were a genuine pre-estimate of loss, it follows that the loss cannot be £60 on days 1 to 14, then £100 thereafter. This is clearly an arbitrary sum invented by PCM

4. I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give PCM Ltd any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, PCM Ltd's lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require PCM Ltd to demonstrate their legal ownership of the land to POPLA.

5. I contend that PCM are only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS -v- HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

6. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between PCM and the owner/occupier, containing nothing that PCM can lawfully use in their own name as a mere agent, that could impact on a third party customer.

7. The notice to keeper is not compliant with paragraph 9 (2)(h) of schedule 4 of the Protection of Freedom Act 2012 in that it does not identify the creditor . The operator is required to specifically "identify" the creditor not simply name them on it .This would require words to the effect of " The creditor is ..... " . The keeper is entitled to know the party with whom any purported contract was made. This they have failed to do and thus have have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.

8. Unfair Terms in Consumer Contracts Regulations (1999):
Private Parking Company charges are unfair terms (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 outcome”.

9. The Appellant refers 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.


10. The Appellant further refers the Adjudicator to recent decisions made by POPLA, many of which are now in the public domain. These include statements such as “However, I must find as a fact that a term of the contract was that if the vehicle parked without complying with the conditions of the contract, the Appellant agreed to pay a parking charge of £85. The Operator is seeking to enforce the contract, by seeking payment of the charge which the Appellant accepted as a term of the contract by parking his vehicle …” and similar rulings. In light of the evidence of Paragraph ?? above, this interpretation can no longer be considered correct.

11. The Appellant asserts that, for the reasons stated above, no “relevant obligation” has been created, and that the parking charge would not be recoverable by the Operator under common civil law. The Appellant therefore invites the Adjudicator to allow the appeal.

Umkomaas

Looks good to me - well done on being ahead of the curve in pre-empting the rejection of your initial appeal. I'm pretty sure you're not being premature in your assumption - :rotfl:.

The one point you seem to have specifically missed is 'the creditor'. From the documentation you have received from the PPC the creditor is not identified, despite it being a pre-requisite of PoFA in order to pursue you as the RK - so as well as failing to comply with the law, they have left you not knowing who you are supposed to owe this money to. So I think you need to put in a paragraph on this.

As you seem well ahead of the game you should wait for others to offer their thoughts, no need to rush this. The one thing to keep your eye on is whether the PPC is actually going to send you your POPLA code. Have the PPC acknowledged your appeal within 14 days, if not - oh dear, another failure to comply, this time with the BPA CoP. They have 35 days to send the POPLA code, otherwise another 'oh dear'.

Whilst the 35 days failure is not a showstopper, it will be a further paragraph to present in your POPLA appeal.

Keep us informed of (any) progress.