Parking charge notice is GPEOL likely to be case for appeal?

bigtoe99

Thanks. Here is the NTK:

http://s746.photobucket.com/user/bigtoe999/library/?sort=3&page=1

4consumerrights

Bigtoe99 - that letter is a fishing trip to find out who the driver was - hope you responded just as registered keeper. They also state two different time scales for appealing.

They are using the system circumventing the requirements of POFA so they do not chase keeper liability. As long as they do not know who was driving that day they cannot hold the keeper liable which could explain their reduced offer of £30.

You POPLA appeal should be written only in the third person using registered keeper and the driver on the day etc.

Research appeals and post up before submitting

bigtoe99

Thanks 4consumerrights
The appeal was as the keeper with driver in the third person (see below).
So are you saying that if this did lose at POPLA, it would not win in court because they can't hold keeper liable?

Here is the soft appeal sent to the PPC
"As registered keeper I wish to appeal against this Parking Charge Notice on the following grounds:
1) Please supply a copy of the relevant sections of the contract that you are working stating that (a) the contract is, in fact, with the landowner and (b) the limit of your authority to levy charges as some landowner contracts do not, in fact, grant that authority. If you are unwilling to provide this information, then I require, in accordance with the BPA and POFA regulations, a POPLA code in order for me to take this appeal to POPLA.

2) The signage informing motorists of the terms and conditions at x car park does not meet the requirements of the BPA Code of Practice. The driver did not observe any signage on entering the car park or from the position where the car was parked or during walking from the car to the shops so I conclude your signs are not clear and no contract was formed with the driver..

3) The charge is punitive and unenforceable. The parking charge amount is not a genuine pre-estimate of loss.

4consumerrights

Parking companies are operating on a dual system which the DVLA are permitting the release of registered keeper details:

One which informs on paperwork that the keeper will be held liable under POFA 2012 - which can be used providing certain steps are taken and information given and the registered keeper can be pursued.

The other which some PPCs use - including CEL send letters to obtain driver details and can only pursue the driver if known
A correctly worded initial appeal can sometimes get the charge cancelled like here:

https://forums.moneysavingexpert.com/discussion/comment/64211294#Comment_64211294

Both forms allow POPLA to be used - so do use this chance to get this quashed.


I am very surprised that the willingly gave you the lease information and this makes me also suspicious that everything in this case is legit.

bigtoe99

Thanks for this.
Should I add something about their right to pursue the keeper to the POPLA appeal? The company is LCP

Coupon-mad

bigtoe99 wrote: »

Thanks for this.
Should I add something about their right to pursue the keeper to the POPLA appeal? The company is LCP

They have no business citing the 'new law' on the back seeing as they don't use the provisions of it! Very misleading.

You can use the paragraph in post #5 here to cover the 'no keeper liability' point:

https://forums.moneysavingexpert.com/discussion/4878998


HTH

bigtoe99

Thanks. I've had a look at post #5 on that thread and it is not clear to me which of the points from paragraph 9, Schedule 4, of POFA 2012 (if any) are missing from the NTK in my case. Or am I missing something obvious?

getmore4less

You say you can't get back to check signage, have you checked on street view, sometimes they go into the car parks or the entry signs are visible from the main road pass.

Coupon-mad

bigtoe99 wrote: »

Thanks. I've had a look at post #5 on that thread and it is not clear to me which of the points from paragraph 9, Schedule 4, of POFA 2012 (if any) are missing from the NTK in my case. Or am I missing something obvious?

Almost all of it is missing. Obviously the ticket has the basic stuff like location & car reg etc., but tell me where you see any of the wording/warnings about the registered keeper's liability on your ticket? You will be looking for ever because it's not there. Hence why it's easiest to quote the whole of paragraph 9 and say 'they've omitted all this so it's a nullity and there is no keeper liability'.

That will 100% win it for you if nothing else does, as long as you remain as the registered keeper (not driver) in all appeal wording. Clearly POPLA can't hold a keeper liable when the keeper isn't liable under the wording of the NTK, which is fundamental to the case.

bigtoe99

Here is a revised POPLA appeal including paragraph about keeper liability and I have tried to make the point about no GPEOL if they are willing to accept £30 (in bold font). Please suggest any changes you think necessary.
Thanks again

POPLA Code: ##
Vehicle Reg: ##
PPC: #
PCN Ref: ##
Alleged Contravention Date & Time: ##
Date of PCN: ##

On ##/##/## I was sent a charge notice from # requiring payment of a charge of £100 for the alleged parking contravention with a reduction to £50 if paid within 15 days.
I would like to appeal this notice on the following grounds:


1 Notice to keeper - not properly given under POFA 2012
2 No Genuine Pre-estimate of Loss
3 Signage


1. NOTICE TO KEEPER - NOT PROPERLY GIVEN UNDER POFA 2012
The Notice to Keeper (NTK) letter omits the required information if it were to establish 'keeper liability' under the POFA 2012. ### have not included all the below required wording from paragraph 9, Schedule 4, of POFA 2012, namely:

''9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(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—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made.''

In this case, the NTK has not been correctly 'given' under POFA2012 and due to the many omissions, it is a nullity. As the driver has not been identified for this parking event, ### do not have the right party for their alleged 'contract/failure to comply’ since they have failed to establish keeper liability.

2 NO 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."

In this case, the PPC ### has provided a calculation to show how the £100 figure is arrived at as follows:
Pre-POPLA loss estimation
DVLA look up £3.50
Postage and printing, back office cost per PCN £5
Labour cost for processing this notice (referring to the response to my initial appeal) and initial appeals £25
Under payment of parking £2
Total £35.50

Post POPLA loss estimation item
POPLA fee £27
Admin cost for subsequent appeals and appeals to POPLA £35

It is the Appellant's position that failure to comply with the PCP terms and conditions has not directly led to a loss of £100 by the PCP. Given that the PPC ## offered to ‘settle the matter’ on receipt of a £30 payment, it is not clear how £100 could possibly be a GPEOL as this would result in a loss to the company of £70.

Even if there was a contract (which is denied), the £100 parking charge does not represent losses incurred at the time the 'failure to comply' occurred.

It is argued that, at the most, the costs incurred at this time were as follows:
DVLA look up £3.50
Postage and printing, back office cost per PCN £5
Under payment of parking £2
Total £10.50 which is very different from the £100 charged.

Labour costs are part of running a business and therefore cannot be justifiably included as a component of the loss suffered. The costs associated with the POPLA appeal are business costs and are not associated with the initial alleged failure to comply with the terms and conditions.


3. SIGNAGE

The BPA Code of Practice states:

18.1 A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the
driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.

18.3 Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving.”

There was no contract between the driver and ##. The driver did not see any contractual information on any of the signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.

The signage was inadequate. The PPC claims that signs were positioned at the entrance of the car park but these were in small font with a large amount of text that could not be easily read whilst manoeuvring into the car park. Other than the entrance sign the company has failed to show that a sign was clearly visible at night from the position the car was parked and on the route from the car to the shops. In the driver's previous experience it is unusual to have to pay for parking when shopping at Tesco and therefore the driver was not expecting the car park to be 'pay and display'. The driver provides examples of Tesco car parks where payment is not required and receipts / bank statements to show that purchases were made.


It is respectfully request that this appeal is upheld and the charge dismissed.