POPLA appeal draft - suggestions please

p5x

I've drafted my POPLA appeal based on research on this forum and was wondering if people could have a look through and advise on any changes that need to be made.

Alleged infringement
I am the Registered Keeper of the vehicle related to the parking charge notice number xxxxx received.

I have researched the matter, taken legal advice and would like to point out the following points as my appeal against said charge:

A) Genuine pre-estimate of loss
Punitive charges and unfair terms
C) No contractual authority to levy charges
D) Unclear, inadequate and non-compliant signage
E) ANPR accuracy

A) Genuine pre-estimate of loss

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."

There was no parking charge levied. On the date of the claimed loss it was not at full capacity. There can have been no loss arising from this incident. Neither can Athena ANPR 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. In this case, Athena ANPR has failed to provide any calculation to show how the £100 figure is arrived at, whether as an actual or pre-estimated loss. Again, it is the Appellant's position that Athena ANPR has suffered no loss for the duration that the car was parked.

In addition, the sum claimed cannot be a genuine pre-estimate of loss, as any contractual breach attracts the exact same apparent amount of loss, whatever the alleged breach of contract may be. If the sum claimed were a genuine pre-estimate of loss, it follows that the loss cannot be £50 on days 1 to 14, then £100 thereafter. This is clearly an arbitrary sum invented by the Respondent.

Punitive charges and unfair terms

The 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”.

I believe that the presented charge is disproportionate to the loss incurred, contravening the Unfair Contract Terms Act 1997.

C) No contractual authority to levy charges

Athena ANPR 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, Athena ANPR have not provided 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 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 to allege a breach of contract.

I would request that POPLA please check whether Athena ANPR has 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 and whether that contract is compliant with the requirements set out in the BPA Code of Practice

D) 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 to the shop.

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, in terms of wording, position and 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])

E) ANPR accuracy

The Respondent uses ANPR camera’s at the entrance/exit of the retail park. The cameras only record the time that a vehicle enters the car park and when it leaves, they do not record the actual parking event nor the point at which the contract to park is entered into. There are six separate actions involved here that relate to the parking event.

1. Driving into the car park. (Entry time recorded on ANPR).
2. Parking the car in an empty parking space.
3. Reading the terms and conditions of parking offered at the retail park.
4. Acceptance of those terms and conditions by remaining at the car park.
5. Driving out of the parking space.
6. Driving out of the retail park. (Exit time recorded on ANPR).

The times of the actual ‘parking under contract’ event therefore differ significantly from the entry and exit times recorded by the ANPR cameras. Furthermore, the ANPR system takes no account of the regular problems in effecting a speedy departure due to the road layout. There are frequent tail backs and it is not uncommon for a motorist to wait a significant length of time to leave, during which time, when not parked but waiting to exit, time soon ticks away until one is at the front of the queue and the ANPR camera captures the exit image.

The BPA Code of Practice indicates at paragraph 13.4 that the Respondent should “allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.” The signage in the car park provides no indication of the period of time it allows and this is unreasonable, especially as Athena ANPR rely on pictures taken of a vehicle at first arrival and then when leaving (again, not showing any evidence at all of actual parking time). There is no evidence that the Respondent has produced to indicate that my vehicle was parked for more than the arbitrary time limit they are relying upon and no breach of contract by the driver can be demonstrated by their evidence at all. On that basis the sum claimed fails to meet the standards set out in paragraph 19 of the BPA Code of Practice.

The BPA Ltd Code of Practice Section 21.1 requires that parking operators can only rely on ANPR evidence if it does so in a reasonable, consistent and transparent manner. Thus the Respondent has failed to recognise that it takes time to get in, find a space, consider the terms and conditions and then eventually to leave. The Respondent’s claim for a parking charge for an alleged overstay based solely of the entry and exit times recorded by ANPR cameras is therefore fatally flawed and cannot be relied upon, on a balance of probabilities, to prove its case.

I further contend that Athena ANPR have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.

On the basis of the above points I have raised, I respectfully request that this appeal be allowed. In the event that POPLA is minded not to grant the appeal then, because the Respondent failed to provide any evidence of its entitlement to recover parking charges, it is requested that it be ordered that the Respondent be not allowed to recover any more than the originally claimed sum.

Yours faithfully...

Thanks for your help.

Coupon-mad

You are not at POPLA stage yet are you? Have you even appealed yet? Or is this another PCN?

https://forums.moneysavingexpert.com/discussion/4804998

Have you complained to the BPA about the late NTK? And complained to the retailer/management on site about a customer getting harassed like this?

p5x

This is another PCN (bad month :mad:)

I've already appealed to the company, they rejected it and sent me a POPLA code.

Guys_Dad

I would add that the "loss" may not include operating costs such as wages, signs, uniforms, office costs etc as these are not incurred as a result of your alleged parking contravention.

Coupon-mad

p5x wrote: »

This is another PCN (bad month :mad:)

I've already appealed to the company, they rejected it and sent me a POPLA code.

Oh, OK, I have looked closer and seen this is Athena. Did they send a FULLY compliant Notice to Keeper in time?

http://www.parkingcowboys.co.uk/keeper-liability/

''The Notice to Keeper
Schedule 4 paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.''

Have a look at the bullet points there under that section as I would be surprised if a small fish like Athena have bothered to identify 'the creditor' and jump through ALL the other wording hoops, and made sure it was received before day 15?

p5x

I can't remember if they identified the creditor but they did send it out within 14 days.

i'll dig out the NTK tonight.

Does the rest of the appeal look ok?

Coupon-mad

Yes it does.

p5x

Here's the NTK, is it worth mentioning in the POPLA appeal that they don't identify the creditor?

nigelbb

p5x wrote: »

Here's the NTK, is it worth mentioning in the POPLA appeal that they don't identify the creditor?

Yes. The NTK is non-compliant in other ways too e.g. it states You have the responsibility under Schedule 4 of the Protection of Freedoms Act 2012 (POFA) of either paying the outstanding parking charge yourself or if you were not the driver advising us in writing within 28 days who the driver was at the time and their current address.

This is a misrepresentation of POFA which states that they should 'invite' the keeper to provide contact details. It is not the keeper's responsibility to do anything.

Check all the points listed here & complain about the ways that this NTK is not compliant for the purses of POFA 2012 http://www.parkingcowboys.co.uk/keeper-liability/

BTW It's a shame that this bit of law got tagged onto a larger act which really is about the Protection Of Freedoms (e.g. regulation of biometric data & regulation of surveillance etc) as it would be far less effective in PPC bullying if they had to quote Private Parking Miscellaneous Provisions Act 2012.

p5x

I'm going to add the following to the end of the letter as another point...hopefully that should cover everything.

[FONT=&quot]Non-compliant “Notice to Keeper” - No Creditor identified[/FONT]

Schedule 4 paragraphs 8 and 9 of the Protection of Freedoms Act 2012 stipulates the mandatory information that must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.

Failing to include specific identification as to who ‘the Creditor’ is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to Athena ANPR, there is no specific identification of the Creditor who may, in law, be Athena ANPR or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that ‘The Creditor is…’ and the Notice does not.

In a previous ruling, 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 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.

Coupon-mad

Don't forget to also add the point made by nigelbb which could be worded:


' In addition, the NTK is non-compliant in that it states ''You have the responsibility under Schedule 4 of the Protection of Freedoms Act 2012 (POFA) of either paying the outstanding parking charge yourself or if you were not the driver advising us in writing within 28 days who the driver was at the time and their current address.''

This is a misrepresentation of POFA which states that they should 'invite' the keeper to provide contact details. It is not the keeper's responsibility to do anything. As such, I contend that this wording breaches the Consumer Protection from Unfair Trading Regulations 2008 because it significantly misstates the true position which prejudices the registered keeper's rights to make an informed decision (regardless of whether the keeper responded to that point). POPLA cannot uphold a Notice to Keeper which has the potential to lead a consumer to make a different choice than they would have done, had the misleading term not been included. '