Help. Highview NTK - need advice

driverj

Hi guys

Since I've already written a longer appeal. I might as well send it and see if it works, and if not continue with the POPLA appeal.

I will let you know the outcome, and if it is the POPLA route would greatly appreciate any help with this.

Thanks again for all your help.

driverj

An update:

Received an update, and they have rejected the letter I posted before. I have now been given a POPLA code.

[FONT=&quot]"This PCN was issued legally and correctly according to the British Parking Association Approved Operators Scheme.[/FONT]
[FONT=&quot]We are fully aware that this is a standard text, with no relation to any specific circumstances which might have represented valid mitigation against the issue of this charge. We are not obliged to answer it point by point, and we cannot accept it in place of a genuine appeal.[/FONT]
[FONT=&quot]In light of this, on this occasion, your representations have been carefully considered and rejected.[/FONT]
[FONT=&quot]We can confirm that we will hold the charge at the current rate for a further 14 days from the date of this correspondence, after which the full amount will be due" [/FONT]
I am not sure if I should continue with the POPLA appeal, given the above response.

Any help or advice with be greatly appreciated.

Redx

if they have given you a POPLA code then your only recourse now (apart from paying it) is to make a good POPLA appeal on things like no contract , not a GPEOL , no authority etc - plenty of examples on the forum for this new appeal which wont be upheld on any mitigation so make sure it has the relevant legal challenges as per all the successful appeals in the POPLA sticky thread

the only other alternative is if you can get the landowner or shops to get the charge waived , but dont let that stop you making the POPLA appeal

and dont just "leave it" as then you will get DR letters etc at a later date

most people thought your "soft appeal" would fail anyway , in which case POPLA was your best bet

hoohoo

driverj wrote: »

I am not sure if I should continue with the POPLA appeal, given the above response.

Any help or advice with be greatly appreciated.

This is bluff and bluster from the PPC. As they always lose at POPLA for the same reasons, it is a bit of mystery why they keep trying, and costs them £27 and the BPA £100. No doubt the BPA are over the moon with this.

Appeal on the grounds of GPEOL and no landowner contract, plus anything else you fancy, but POPLA will not need to read past those 2 reasons.

Guys_Dad

Start here https://forums.moneysavingexpert.com/discussion/4816165

driverj

Thanks a lot guys. I'll be using a combination Guys Dad and Coupon Mads POPLA appeal guideline, as well as checking the latest POPLA decisions.. Hoping to come with my own tonight, and would welcome any suggested amendments after posting it.

driverj

Hi guys,

Sorry for the delay, have been ill for the past 2 weeks. Below is a guideline of my POPLA appeal, but I just wanted to make sure my GPEOL point is worded correctly as well. Points 3-5 I am writing up currently.

Picture of the signage:
oi41.tinypic.com/ftlpy.jpg

1. Punitive/Unfair/Unreasonable parking charge and Sum demanded is not in any way representative of the financial losses suffered by the landowner

This car park is free and there is no provision for the purchasing of a ticket or any other means for paying for parking. Furthermore, on the date of the claimed loss the car park was only at less than 60% capacity (I require Highview Limited Parking Ltd to provide evidence to prove otherwise) and there was no damage nor obstruction caused so there can be no loss arising from the incident.
The wording of the signage on the site states ‘failure to comply with any of these conditions may result in your vehicle being issued with a parking charge of £95.’ It is clear from this wording that the amount will only be sought in the event of a breach of the terms and conditions of the contract on the signage and therefore the charge would appear to represent liquidated damages, which is compensation, agreed in advance. This means that the entirety of charge must represent a genuine pre-estimate of loss directly flowing from the alleged parking contravention to be enforceable.

I require Highview Parking Ltd to submit a full breakdown of the actual pre-estimate loss in connection with this alleged contravention. The amount claimed must not include the costs of running their business. It should only be the costs they incurred solely due to this alleged contravention. This does not include any costs that they would have had to carry if they had been elsewhere or any operational day to day running costs (for example, by erecting signage and employing administration staff, wages, uniform, rents).

Without prejudice to the foregoing, even if there was a contract (which is denied) the charge made by Highview Parking Ltd is:

a. Punitive
The charge that Highview Parking Ltd are levying is punitive, contravening the Unfair Contract Terms Act 1997 and therefore void (ie unenforceable). The charge of £95 is arbitrary and in no way proportionate to any alleged breach of contract.

b. Unfair
The charge Highview Parking Ltd are levying is an unfair term (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 substance of the term."

c. Unreasonable
The charge Highview Parking Ltd are levying is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”


2. Non-Compliant NTK

Unidentified Creditor:
Under the terms of the Protection of Freedoms Act, specifically Schedule 4, paragraphs 8 and 9, Highview Parking Ltd must identify the creditor who is legally entitled to recover parking charges on their NTK. They have failed to do so, and so have no right under the PoFA to reclaim parking charges from the keeper of the vehicle. 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 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.

Non-compliant admin fee:
There is a non-compliant £40 admin fee mentioned on the Notice-to-Keeper which indicates that the fee 'will' be added if not paid after 28 days. However, Highway Parking Ltd cannot impose this fee if an appeal is underway, as this is a breach of the BPA Code of Practice. This is misleading and would make the Penalty Charge Notice exceed the BPA '£100 ceiling' even if Highway Parking Ltd were allowed to impose the admin fee on if I was appealing.

3. No Landowner contract and insufficient interest in land.

4. Trespass
free car park = no loss incurred.

5. ANPR Accuracy


Any advice or help, would be greatly appreciated

Coupon-mad

''I require Highview Parking Ltd to submit a full breakdown of the actual pre-estimate of loss in connection with this alleged contravention.''

And there's an ANPR wording suggested here:

https://forums.moneysavingexpert.com/discussion/comment/63857139#Comment_63857139

You can use a version of that if you want, even though your PPC isn't Parking Eye the systems work the same (I think) and is for them to prove otherwise.

driverj

Thank you Coupon-mad. I'll make that adjustment.

With regards to the wording of the signage and my argument against loss - I'm guessing this fine?

Thanks again

Coupon-mad

http://oi41.tinypic.com/ftlpy.jpg

Yep, that's clearly a sign alleging 'failure to comply'! They will lose this on 'no GPEOL' which you have worded fine.

Check in the example I linked that you haven't missed anything you could add to any other paragraphs!