Uk carpark mgmt notice to keeper

Coupon-mad

That's a good draft, has the usual winning points. If you haven't submitted it yet (and do it online to POPLA to avoid postal delays) then I have suggested some changes in bold. It was a bit long and the 'loss' point should come above the 'signage' point as the latter won't be the winner anyway:




RE:POPLA CODE XXXXXXXXXX
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. 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.

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

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

Here are the detailed appeal points.

1. 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. The contract must state that the Operator can form contracts with drivers and that they can pursue the charge to court in their own name. I contend that UKCPM have no such authority at this site and are merely a parking agent providing a service to the freeholder, but with no assignment of title and no more legal standing than any agent/contractor.

{I would get rid of the witness statement paragraph, N/A to UKCPM. They will either show a contract or they won't!}

2. 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 flowing from a breach of the parking terms.

{wording deleted here, was just repetition}

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. 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.

In their latest letter rejecting my appeal, UKCPM have clearly stated that their fixed fee/charge 'is not a genuine pre-estimate of loss'. It was very helpful of UKCPM to help me make my case in this regard, since they then go on to confirm their charge IS for alleged 'breach' of parking terms...which, of course, under contract law has to reflect ONLY loss/damages if it is to be enforceable. Clearly this charge is unenforceable.

{wording deleted here not needed}

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 which is not local and was unfamiliar to the driver. 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.

{sentence removed here which isn't relevant as it talks about P&D machines}

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, and I contend that the driver did not.

{unnecessary sentences removed here which again talk about P&D machines}

This concludes my appeal.

Name of registered keeper

mcse17

Coupon-mad wrote: »

That's a good draft, has the usual winning points. If you haven't submitted it yet (and do it online to POPLA to avoid postal delays) then I have suggested some changes in bold. It was a bit long and the 'loss' point should come above the 'signage' point as the latter won't be the winner anyway:




RE:POPLA CODE XXXXXXXXXX
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. 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.

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

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

Here are the detailed appeal points.

1. 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. The contract must state that the Operator can form contracts with drivers and that they can pursue the charge to court in their own name. I contend that UKCPM have no such authority at this site and are merely a parking agent providing a service to the freeholder, but with no assignment of title and no more legal standing than any agent/contractor.

{I would get rid of the witness statement paragraph, N/A to UKCPM}


2. 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 flowing from a breach of the parking terms.

{wording deleted here, was just repetition}

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.

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.

In their latest letter rejecting my appeal, UKCPM have clearly stated that their fixed fee/charge 'is not a genuine pre-estimate of loss'. It was very helpful of UKCPM to help me make my case in this regard, since they then go on to confirm their charge IS for alleged 'breach' of parking terms...which, of course, under contract law has to reflect ONLY loss/damages if it is to be enforceable. Clearly this charge is unenforceable.

{wording deleted here not needed}

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 which is not local and was unfamiliar to the driver. 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.

{sentence removed here which isn't relevant as it talks about P&D machines}

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, and I contend that the driver did not.

{unnecessary sentences removed here which again talk about P&D machines}

This concludes my appeal.

Name of registered keeper

Thanks for the input, I haven't submitted online yet as was waiting for for a final version before I submit. I think I have one now and will submit this tomorrow. Will let you know how It goes...

mcse17

Hi Guys,

Sorry for the late update but I just wanted to say thanks for your help... I won my appeal .. the reason is given below...

"The Operator’s case is that the terms and conditions for parking in the car

park are clearly displayed and signposted throughout the car park. The

signage says: “Permits must be clearly displayed in windscreen at all times”

“No parking outside of a designated area/parking bay” “ terms of parking

without permission, you do so at your own risk to property and personal injury

and the motorist is contractually bound to pay a parking charge.” They state

that their photographic evidence shows that the vehicle was parked outside

of markings of a bay and it did not have a permit on display. Copies of the

parking charge notice and onsite signage have been produced.

Photographs of the vehicle taken on the date of the parking event have also

been produced.

The Appellant has made a number of submissions, however, I will only

elaborate on the one submission that I am allowing this appeal on, and

namely that the amount of the parking charge does not represent the

landowner’s loss of revenue and it is not a genuine pre-estimate of loss.

The Operator rejected the Appellant’s representations as set out in the

correspondence they sent because, they state that a breach of the car park

conditions had occurred by parking outside of a marked bay. They say that

the parking charge is not a re-estimate of loss to the land owner

The Operator has sought to justify that the parking charge fee is not a pre-
estimate of loss to the land owner. The burden of proof is on the Operator to

support the enforcement of the parking charge notice. I find that on this

occasion, the Operator has failed to prove that the amount for the parking

charge notice is a genuine pre-estimate of loss and therefore, they have not

discharged the burden of proof.

Accordingly, this appeal must be allowed." :j

Coupon-mad

Silly old UKCPM saying it 'wasn't a GPEOL' so they shot themselves in the foot! Can you also post this outcome in the 'POPLA Decisions' thread please for our winning stats, and state first that it was a UKCPM case.