Suggested POPLA appeal template - core points.

Guys_Dad

Amended 31st January to add a further sentence to the GPEOL appeal point to cover the fact that in the costs PPCs are using to justify their GPEOL are costs incurred in the run up to POPLA incurred after the charge was sent.

Amended 15th January to take into account PPC winning at POPLA and including the appeal costs as part of the GPEOL included in the charges.

I have been reading lots of different appeals on here, varying from the very comprehensive to the minimal.

I offer this as my suggested core template with the following caveats.

There will be some other points, such as Out of time, Disability and other points. These should be added to the core template.

But do specify at the beginning all of the points you want to appeal on as a list so the assessor doesn't overlook any. And keep your layout clearly separated and no long paragraphs that hide the real meat.

The nuances in the points about punitive, GPEOL and other very similar points I have tried to incorporate into a simpler one point.

Where I mention "PPC name", then please substitute the company in question.

As regulars will see, many elements of other appeals are incorporated as well as some adjudicators' own wording on winning appeals. Thanks to those who did the originals.

Here it is, for what it is worth and remember this is just the core appeal that you build on but do try to follow the structure.

"APPEAL RE: PPC Name CHARGE ******/******,*********
CAR PARK **/**/2013, VEHICLE REG: **** ***

I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.

1. Neither the parking company or their client has proved that they have planning consent to charge motorists for any alleged contravention.

2. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.

3. The signage at the car park was not compliant with the British Parking Association standards andt here was no valid contract between the parking company and the driver.

4. The amount demanded is not a Genuine Pre-estimate of loss.

Here are the detailed appeal points.

1. No right to charge motorists for overstaying

Planning consent is required for car parks and have conditions that grant permission as the car park provides a service to the community. To bring in time limits, charges and ANPR cameras, planning consent is required for this variation. I have no evidence that planning consent was obtained for this change and I put the parking company to strict proof to provide evidence that there is planning consent to cover the current parking conditions and chargeable regime in this car park.

Additional paragraph where the land is not owned by the client (e.g. ALDI land where they are not the landowner)

"I note that the parking company has not been engaged by the landowner, but by a lessee or tenant of the land. I require proof from the actual landowner that their contract with the lessee/tenant gives authority for any form of parking restrictions or charges to be brought in. (There are VAT implications when a car park is a revenue generating business that may impact upon a landowner and that is why it needs to be established that they need to have granted permission in their lease.")

2. No valid contract with landowner

It is widely known that some contracts between landowner and parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require the parking company to produce a copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory
is, indeed, authorised to act on behalf of the landowner ,has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company

3. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver

Following receipt of the charge, I have personally visited the site in question. I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.

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”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator 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, rather than simply the nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

4. The amount demanded is not a Genuine Pre-estimate of loss

The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowiing from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre.

The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time. Note:- the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and can not include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.

For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.

Equally, as the claim is being made for estimated losses at the time of the alleged contravention, then any costs included by the Operator that relate to accumulated amounts post that date are obviously invalid. Should such cost heads be included in the claim, as well as any profit element, then POPLA must reject the charge.
It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.

This concludes my appeal.

Note for Parking EYE cases.

Parking Eye have a letter sent by their director that actually states that their costs per case are £53. That being the case, their £100 obviously contains an element of profit. The letter in question is here http://imgur.com/a/vzLDq

A paragraph such as the following should be added in PE cases.

“ Furthermore, I attach a letter from Parking Eye in correspondence with another case, that admits that their estimate of cost in each case is actually £53, including operating costs, and this that the charge they are seeking to impose in my case has a considerable element of profit as well as operating costs incorporated. By their own admission, therefore, It can not, be a true pre-estimate of loss”

4consumerrights

IMO Going back to basics can be expanded even further:

Pre-exising contract obligations and novation agreements (transfer of obligations): This is particularly relevant where free parking is allowed. Where a landowner previously allowed drivers to park on their land without any charges imposed i.e. before the parking company engaged, then the parking company cannot deny the driver to park under previous the landowners previous obligations to the driver. Any new terms must be given in advance by parking company and landowner and agreed by the driver. The ambiguous wording of car parking signs and their positioning does not make these new terms clear. The act of parking alone cannot be deemed acceptance of these new terms as this was an action previously carried by the driver before the engagement of the PPC.

Planning consent for ANPR cameras is also required where used - this can be requested in addition to planning consent for the relevant parking times.

Legal obligations for tax: Request evidence that full automony to recover parking charges is given to the parking company and that they are paying business rates for the relevant parking site in question.

Landowners permission from lenders/insurance companies to allow third party operation of car parks. - All large retailers/organisations borrow money to expand businesses which not only has VAT implications but also have lucrative tax concessions and rebates available. However, just as any homeowner requires the consent of mortgage lender to rent out a property, there are conditions imposed by lenders to businesses and many landowners could be in breach of lending criteria and contravening their public liability insurance by assigning third party agreements. ( - Do not forget also that many landowners receive a proportion of parking charge amounts received as an incentive to use the services - IMO this is a bribe)

Guys_Dad

These are valid points, particularly ANPR permission which I might include

However, I wanted a simple core appeal that newbies could understand and adapt.

Your other points, although correct, are for a more sophisticated audience which probably is above most newbies' needs (and adjudicators' comprehension!)

4consumerrights

Having re-read the posts again - I tend to agree with you Guys Dad - for the extent of just a POPLA appeal keep it simpler. However the forum receives requests for help at different stages in the process from parking charge notice up to court cases and my points could more relevant in getting the charges dropped if people have missed POPLA - e.g preparing for court.

kirkbyinfurnesslad_2

Guys dad thts what I have been wanting for a long time.

It will save a lot of time. Get to the point etc

Umkomaas

Well done GD. It's going to save us all a lot of b4ll-aching typing on virtually every other thread that's opened here.

So the 'Walk Through', C-m's 'Successful Appeals' thread, 'your POPLA appeal Template', Daisy's 'LBCCC thread' should give OPs a good start on their journey to overcoming their problem.

Just need a 'Court Defence' and we should have covered most bases from here on.

Clearly all of these are mutable in the light of changing events.

Computersaysno

All we need to do now is to actually get people to read these things....lol.

There are still going to be hundreds of posts every week where the OP will have not bothered to read anything no matter what we say or do [see my thread called something like 'Too lazy to do anything, please pay my fine'].

The way to success in these templates is for everyone to point new posters to them and not get drawn into answering specific points......mmmhhh, that's a tough one.

Stroma

I can understand the wanting of putting template answers on the forum, I have a few concerns about them though, what happens when the advice changes ? We already have this problem when people read threads that are years old and out of date.

People get lazy and can't be bothered to look for answers and the reasons behind the templates, this means they are using terms they have no idea about and don't really understand why we advise this.

I never use template messages, I encourage people to try and learn why this is, they can gain a lot of knowledge by reading a few pages of threads, and using the search facility on this forum, it would be better IMO to teach people how to use this website properly, and get away from google.

When I first came here seeking advice, this is what I did , giving people the answer without the question should be used sparingly.

Umkomaas

Computersaysno wrote: »

All we need to do now is to actually get people to read these things....lol.

There are still going to be hundreds of posts every week where the OP will have not bothered to read anything no matter what we say or do [see my thread called something like 'Too lazy to do anything, please pay my fine'].

The way to success in these templates is for everyone to point new posters to them and not get drawn into answering specific points......mmmhhh, that's a tough one.

What's a template please?

Guys_Dad

Taking up Stroma's point, I will try to keep the template up to date or delete it If it becomes out of date.

HO87

@Guys Dad

Firstly - colours to the mast - I am not a fan of templates in situations where there are many potential variables especially when newbies are highly unlikely to have grasped some of nuances of PPC World. We have gained a reputation for winning POPLA appeals and could endanger that by attempting a one-size-fits-all approach (I appreciate that that is not necessarily what you are suggesting). As we have seen more than once not everyone posts and there have been a significant number of posters who have visited the forum, gathered what they thought they needed and then gone off to attempt POPLA appeals themselves and failed only to return when they are at LBCCC stage. My concern is that if we openly offer a template it will be used inappropriately and will remain available regardless of changes in advice and/or the law.

I see no reason whatsoever why we shouldn't agree a basic template but the variations and potential for c0ck-up by posters looking for that idiot-proof, time-saving template because they are chewing their finger nails to their elbows and want the problem gone could, ultimately, gain us a reputation for wrong advice.

We have seen the occasional "Well I used your so-called advice and now I've got a MCOL claim form" type post before. Additionally, there are umpteen posts asking the same, tired old question "Is the advice still to ignore/not pay". Basically, my fear is that by offering a template we would destroy our record at POPLA and our overall reputation.

That having been said:

I suggest you change the wording to the third person so as to get away from any implication/inference that the author was the driver.

I'm also concerned about OP's who almost certainly won't understand the difference between liquidated damages for breach of contract and contractual charges (and the implications for any POPLA appeal) will be tempted to use this as a one hit wonder. I'm not sure how this should be tackled.

We also need to be careful about the emphasis that is placed on what are essentially peripheral issues such as planning permission/VAT/Business rates. Whilst these things can speak to the overall legitimacy/good faith of the parties they will not necessarily affect the legality of any contract that may or may not be formed with the motorist. Include them - because the BPA AOS CoP requires members to (paraphrasing) abide by relevant laws - but we should avoid giving the impression that these are cornerstones of any appeal.