CPM parking fine

kennethwilliams101

Just the one sign in the street that I am aware of - Near to the entrance as you come in - To be honest, I would not have noticed it had I not known it was there.

Thanks again for all your help - I'll look into the Freedoms Act and get back to you.

kennethwilliams101

I'll do this by hand -Notice To Keeper wording

NOTICE TO KEEPER
FORMAL DEMAND - DO NOT IGNORE THIS NOTICE

Date of notice - Date in September
PCN Reference
Vehicle Registration
Date Of Issue - Date in July
Time Of Issue - 4:23pm

This letter is sent to the registered keeper advising that a Parking Charge Notice (PCN) was issued to the driver of the vehicle ***** at ***** on the ****** at the location ****** for the alleged contravention on "Not Displaying A Valid Permit". This PCN has not been paid in full and the opportunity to pay a discounted amount has been lost.

Failure to provide the full payment of £100 or provide the name and serviceable address of the driver after 28 days after this notice is served under schedule 4 of the POFA 2012, we do have the right, subject to the requirements of the ACT, to recover the unpaid amount from the registered keeper of the vehicle at the time of the contravention.

As the PCN issued to the above vehicle remained unpaid for 28 days, we had reasonable cause to request the registered keeper details from the DVLA. If you wish to challenge this parking charge notice, please see overleaf.

Followed by 2 pictures - 1 of my vehicle in the road and another of the sign previously described in this post - and the comment - To view further photographic eveidence please visit www.paymyticket.co.uk

Then a list of ways to pay and a payment slip

The small print at the bottom states :

UK Car park Management LTD reg *** adheres to regualtions on the release of information from the driver and vehicle licencing agency's vehicle register for the operation of their parking enforcement scheme. If you have any reason to believe your data has been inappropriately used you may contact one of the following **********

The rear of the letter states :

APPEALS PROCEDURE

If you wish to challenge this Parking Charge Notice, please write to appeals ****/ All correspondence must include your name, address, the name and address of the driver (if different) the vehicle registration and reference number. Appeals must be received within 28 days of issue. On receivng an appeal we will acknowledge it within 14 days and hold the charge at the lower discount rate. We will respond within 35 days. If the appeal is unsuccesful you will be provided with the contact details of POPLA and an appeal
reference. Please be advised taht if you choose to appeal to the Independent Appeals Service and your appeal is unsucceful you will lose the right to pay at the reduced amount.

The grounds under which you can appeal the parking charge notice are as follows :

The vehicle was not improperly parked

e.g. thatthe vehicle was not prked where stated on the parking charge notice, that you believe you were still within the time you paid for, that the voucher was clearly displayed or that the conditions were not properly signed.

The parking charge (ticket) exceeded the appropriate amount.

e.g that you are being asked to pay the wrong amount for the aprking charge or that the charge has already been paid.

Vehicle was stolen

*****

I am not liable for the parking charge

e.g. that you had sold the vehicle before, or brought it after, the alleged improper parking. However, the fact thatb you paid to park the vehicle in the first place (even if, for example, the voucher was not clearly displayed) is not in itself a valid ground of appeal.

Date protection

The DVLA is granted access to inspect methods of data processing in order to confirm that all data is processed in the manner agreed to in the Code Of Practice and that the data is handled in accordance with the DPA 1998. You may apply directly to the DVLA or the Information Commissioner for further guidance on this matter. Any information you may provide may be disclosed to other organisations in connection with the recovery of this Parking Charge. Data may be disclosed to other organisations in order to substantiate claims made within any appeal and upon the institution of legal and recovery proceedings.

followed by a cut out Declaration of owner/driver slip

Any POFA ommisions that you can spot at all ?

Many thanks

Coupon-mad

Date of notice - Date in September

Date Of Issue - Date in July

Was the NTK received by you within 56 days?

And as regards PFA compliance, it's easy to compare it, check out paragraph 8 here:

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

Dunno about you but I can't see anything about 'the creditor' nor about now inviting you to name the driver? Or is that clear from the cut off slip?

But that sentence starting 'Failure...' seems not to have been typed in full? It's not grammatically correct so I am wondering about it, is there a bit more in that paragraph, check you've typed every word.

kennethwilliams101

Unfortunately yes - NTK received within about 50 days

The line beginning 'Failure to provide the full payment ....' is exactly the same as wording on the letter

The declaration of owner/driver states

If you were not the owner of the vehicle stated herein when the contravention occured or you were the owner of the vehicle stated herein when the contravention occured but it was in the possession of another person (either with or without your consent). Please proviode any further information that will lead to the true identification of the Owner/Driver responsible by completing the following section and returning it to **** within 28 days of this notice.

Please tick the statement below that apply to you ***** etc etc

I don't see anything regarding a 'creditor' at all on the NTK - Does that actually make any difference for an appeal ?

e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—

Can't see anything that explicitly states this ?

(c)state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);

Above was obviouslywas not received

g)inform the keeper of any discount offered for prompt payment

As previously stated, this was never offered as original PCN was never received

Coupon-mad

I don't see anything regarding a 'creditor' at all on the NTK - Does that actually make any difference for an appeal ?

Yes. You can add between the 'Notwithstanding' paragraph and the 'Bearing in mind' paragraph I suggested earlier for your POPLA appeal:


The Notice to Keeper is not compliant with paragraph 8(2)(h) of Schedule 4 of PoFA 2012. Whilst the NTK was issued by and demands payment is made to a third party entity called CPM, there is no specific identification of the “Creditor”, who may, in law, be CPM or, as they do not own this land, some other party. The wording of Paragraph 8(2)(h) of Schedule 4 of PoFA states that the creditor must be “identified” in any NTK. The driver is entitled to know the identity of the party with whom he has allegedly contracted. POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 8 or 9 it must, as with any statutory provision, comply with the Act. As the Notice was not compliant with the Act, it was not properly issued.

kennethwilliams101

The NTK came on paper headed with CPM logo on the top right corner and the payment slip states that cheues/postal orders be made out to them - Would this constitute 'identifying' the 'creditor' ?

kennethwilliams101

Sorry to keepasking questions and I REALLY do appreciate all your help.

This paragraph of the draft :

1) Parking Permit was displayed at the time of parking

The vehicle was parked for a short period whilst my family visited relatives who live in the road (a residential street). A valid parking permit to park in this location was placed on the dashboard next to the passenger's disabled parking badge.

If CPM are alleging that the driver entered into a contract with them (which is denied) then it can only be formed during the short interval comprising parking/reading signs/placing the permit on the dashboard/deciding to stay at that location. And since this permit was on the dashboard when the car was parked, and CPM have shown no relevant evidence to the contrary, the contravention alleged in their later 'Notice to Keeper' letter is denied.

The photographs provided by CPM clearly show that there is no permit on the dashboard (because it had fallen into the footwell) - Does this make this reason invalid ?

Coupon-mad

kennethwilliams101 wrote: »

The NTK came on paper headed with CPM logo on the top right corner and the payment slip states that cheues/postal orders be made out to them - Would this constitute 'identifying' the 'creditor' ?

NOPE. Trust me!

The photographs provided by CPM clearly show that there is no permit on the dashboard (because it had fallen into the footwell) - Does this make this reason invalid ?

Not in my view because I have stated there that the permit was displayed at the point of any alleged contract being formed. How can you know what happened after that, don't guess that it was your fault, maybe the PPC shook the car - which we have seen mentioned on threads more than once.

Also, be confident! Bottom line with any POPLA appeal, you can say whatever you like (e.g. you could say the Earth was flat if you thought it would help!) because each point of appeal has to then be rebutted by the PPC if they are to avoid defeat.

My guess is that yours will win on 'no contract' as most PPCs don't like to show the contract with the landowner.

If not then I have tried to word the 'breaches of POFA' paragraph as a winner as well, to 'catch' the decision with that instead. Hence why I have mentioned POPLA Assessor Matthew Shaw and what he said about strict compliance with POFA in every word of a NTK.

When you eventually get sent CPM's evidence, show us the PCN as well so you can add in any omissions in a follow-up email to POPLA.

kennethwilliams101

Excellent :beer: - Unless you think otherwise, I would use this as my final draft (pending any further help from the council regarding any local traffic order on Monday) - But failing that, would you say this is good to go ?

CPM PCN Reference *********
POPLA Reference *********
Vehicle Registration *********

Dear POPLA,

As the registered keeper of the above vehicle I am writing to appeal against a parking charge notice issued in ***** ****** on **********. My initial appeal to UK Car Park Management (CPM) has been declined.

I contend that I am not liable for the parking charge and wish to appeal on the following grounds :

1) Parking Permit was displayed at the time of parking

The vehicle was parked for a short period whilst my family visited relatives who live in the road (a residential street). A valid parking permit to park in this location was placed on the dashboard next to the passenger's disabled parking badge.

If CPM are alleging that the driver entered into a contract with them (which is denied) then it can only be formed during the short interval comprising parking/reading signs/placing the permit on the dashboard/deciding to stay at that location. And since this permit was on the dashboard when the car was parked, and CPM have shown no relevant evidence to the contrary, the contravention alleged in their later 'Notice to Keeper' letter is denied.

2) Breaches of Schedule 4 of POFA 2012 paragraphs 8 and 9

The first time that we were even made aware of any PCN was when I received the Notice To Keeper (NTK) on *****. No ticket was found on the vehicle on the date in question and no other letters regarding a PCN have been received.


As no evidence has been produced to show that any ticket was placed on the car windscreen, in order to establish registered keeper liability under POFA 2012, CPM were required to serve a postal (fully compliant) Notice to Keeper within 14 days of the incident. They have failed to do so, which would be a breach of paragraph 9 of Schedule 4 of the POFA 2012 unless they can prove service of a compliant Parking Charge Notice first.

Notwithstanding the above, if CPM do show POPLA and myself clear evidence that a windscreen ticket was served - for example, by showing contemporaneous (dated/timed) photos of the car with this ticket on it at that time, on that day - then I still contend that the PCN and the Notice to Keeper fail to meet the strict criteria for such Notices in Schedule 4 of the POFA 2012.

Bearing in mind I have never seen this alleged 'Parking Charge Notice' I must contend that neither it nor the Notice to Keeper meet any of the requirements under paragraph 8 of Schedule 4 of the POFA 2012. I put CPM to strict proof of compliance with all parts of paragraph 8 including showing me and POPLA a true copy of the 'PCN'. If CPM show a copy of this in their 'evidence' I reserve the right to add to this point of appeal disputing 'paragraph 8' compliance, once I have had my first chance to scrutinise the PCN wording.

Furthermore, the Notice to Keeper is also not compliant with paragraph 8(2)(h) of Schedule 4 of POFA 2012. Whilst the NTK was issued by a third party entity called CPM, there is no specific identification of the “Creditor”, who may, in law, be CPM or, as they do not own this land, some other party. The wording of Paragraph 8(2)(h) of Schedule 4 of POFA states that the creditor must be “identified” in any NTK. The driver is entitled to know the identity of the party with whom he has allegedly contracted. POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 8 or 9 it must, as with any statutory provision, comply with the Act. As the Notice was not compliant with the Act, it was not properly issued.

3) The Charge Is A Penalty And Not A Genuine Pre-Estimate Of Loss.

I do not believe that the charge of £100 is a genuine pre-estimate of loss. I feel it is punitive, unreasonable and totally exceeds an appropriate amount and has no relationship to any loss that would have been suffered by the landowner. The BPA Code of Practice states :

“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.”

I would require CPM to provide a detailed breakdown of how the amount of the “charge” was calculated. I am aware from Court rulings and previous POPLA adjudications that normal expenditure that CPM incurs to carry on their business, their operational day-to-day running costs (e.g. parking enforcement, provision of parking, signage erection, salaries and office costs) must not be included as these are operational costs that CPM would suffer regardless of my vehicle being parked in this location.

4) No Contract Between Driver and CPM

CPM’s signage in ********* states ‘You are contractually agreeing to pay a parking charge fee’, however, I would assert that there exists no contract between CPM and the driver.
I would challenge CPM to provide strict and robust proof that there was a contract in place on the day that meets all the legal requirements of contract formation (i.e. a meeting of minds, agreement, certainty of terms etc). If all of these requirements have not been satisfied the contract would be deemed as ‘unfair’ in the Unfair Terms in Consumer Contract Regulations 1999. Schedule 2 of these regulations gives an indicative list of terms which may be unfair and include :

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".

Schedule 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"

Schedule 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".

In any case, I contend that the Operator has not made any 'relevant contract' with the driver at all. This charge is unenforceable, as was found in Parking Eye v Sharma, Claim No. 3QT62646 in Brentford County Court on 23rd October 2013. District Judge Jenkins found that a contractual arrangement to manage parking does not give rise to a cause of action to claim for damages. Any contract was purely a commercial matter between an Operator and a landowner, and didn’t create any contractual relationship with motorists. CPM do not own this land so, like Parking Eye in that adduced case last week, I say that as mere agents, CPM have no legal standing to form contracts with visiting drivers nor to pursue charges in their own name.


5) CPM’s Legal Capacity to Enforce Or Issue Parking Charge Notices

CPM have not produced any evidence in their correspondence with me to show that they have any proprietary interest in **********. Nor have they provided any evidence that they are lawfully entitled to demand money from a driver or keeper. As it appears that they do not own the land, nor have any interest or assignment of title of the land in question, it is assumed that they are merely agents for the owner or legal occupier. I contend, therefore, that they do not have the necessary legal capacity to charge the driver of a vehicle for parking in the road.

With this in mind I would require that CPM provide a full, contemporaneous signed and dated contractwith the landowner. A signed witness statement stating that someone has seen a contract is not sufficient. The contract must state that CPM are entitled to pursue these matters through the issue of PCN’s and through the courts. This needs to be an actual copy and not simply a document which claims that such a contract or agreement exists.

As this is a residential street with terraced town houses and is not a car park, CPM are required to show that this is 'relevant land' as defined in the POFA 2012 and that it is not already covered by statute/Traffic Order. This street has the clear appearance of public highway and is not a car park so I contend that it is not 'relevant land' where CPM could establish registered keeper liability at all. CPM are required to prove it is 'relevant land' with a 'relevant contract' because they cannot invoke registered keeper liability otherwise.

In light of these points I would respectfully request that my appeal of this PCN is upheld and the charges dismissed.

Yours faithfully,

Coupon-mad

Meant to ask, do the photos from CPM show a PCN on the windscreen? If so then we will have to re-think this:

As no evidence has been produced to show that any ticket was placed on the car windscreen

The only other things were to make sure the 'bold' that I put to show my suggested changes is removed, so that only the titles remain in bold. And there's an extra line gap that shouldn't be there in point #2.

And you could add another point about signage if their photos of the car do NOT show a sign near the car. And you said you can only recall one sign? Worth another paragraph (6) to say that the lack of signage where the driver parked, fails to meet the requirements for signage in the BPA Code of Practice section 18 and Appendix B and also fails to have established beyond doubt that the driver saw any signs at all when parking in that place. CPM are put to strict proof with dated photographical evidence and contemporaneous, relevant and complete maps of this site to show the presence of abundant, clear signage which would be prominent, visible and close enough to be read from any parking place on site. Along with exact photos of the wording on those signs at that site in that week, not just stock photos.


I like POPLA appeal points about signage because it costs the PPCs soooo much in photocopying and postage even if they can prove they have signs everywhere!