parking charge notice

treehuggerss

So as expected i won the appeal and for all fellow David's against Goliath - below is my appeal letter and the POPLA reply below that. Very warm greetings to all from a very hot and dry Ouagadougou, Burkina faso.
cheers for the advice guys!

Appeal reasons:
Dear Sirs Re:- POPLA Appeals Submission Vinci Park services. Adams Street Car Park, Cardiff Reference: Parking Charge Notice: AS00720131231132549 Verification Code: 9160074403 As registered keeper of the vehicle. With regards to the request for payment of either £50 or £100 for breach code 01 - parking without displaying a valid payment. The smaller sum is listed as this appeal is made well within the specified 14 day period specified by Vinci as payable within 14 days. The amount claimed by Vinci is liquidated damages and, as such, the Operator may only charge a genuine pre-estimate of loss that arise from the alleged contravention. There is no such loss to any party as a valid ticket was purchased and the vehicle exited the car park well before the ticket expiration time. The purchased, valid ticket was displayed on the dashboard and may have blown over so that the side of the paper with the time printed on it was no longer facing the windscreen; however the serial number is clearly displayed and the valid ticket was supplied to the Vinci as evidence of a valid ticket being displayed on the dashboard of the vehicle. The Operator appears to have included a basket of costs, including the cost of erecting site signage and the cost of membership of the Driver and Vehicle Licensing Authority, wages and uniforms which are Operational costs of running the business. The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. However, some of the surmised costs referred to do not represent a loss resulting from the alleged breach. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. 1. CONTRACT WITH LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO STATUS TO OFFER PARKING OR ENFORCE TICKETS Vinci do not own this car park and are acting merely as agents; with both Land Securities and St Davids Partnership Ltd (financial investors) involved in land holding of the site. Vinci has not provided me with any evidence that it is lawfully entitled to offer parking spaces, allege breach of contract or enforce parking charges (as evidenced in the Higher Court findings in VCS v HMRC 2012). Vinci has no proprietary interest or assignment of title of the land in question. I require Vinci to provide a full copy of the contemporaneous, signed & dated contract with the landowner (not just a signed slip of paper from someone) because even if one exists, it is likely that it does not specifically enable Vinci to pursue parking charges in the courts. This would not be compliant with the requirements set out in the BPA Code of Practice. I note that the parking company has not been engaged by the landowner, but by a lessee or tenant of the land, as cited above. 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 re-visited the site in question. I believe the signs and any core parking terms that the parking company are relying upon were not positioned well enough for any driver to see, read or understand when driving into this car park, especially from the very busy ‘right turn’ junction with the traffic lights opposite the Atrium building. 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 following 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. In attempting to claim £100, the parking company has de facto 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. There is no factual loss of any description, as a valid £2 ticket was purchased for the 2 hour parking period; the vehicle exiting the car park 40 minutes prior to the purchased parking period. 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. It would, therefore, follow that these charges were punitive, have a large element of profit included and are not allowed to be imposed by parking companies; it is ludicrous for any contract terms to escalate from a ticket price of £2 to £100 ‘claim’!! This concludes my appeal. I contend, therefore, that you should allow the appeal on these grounds. I would be obliged if you could kindly acknowledge receipt of this appeal.

The Appellant appealed against liability for the parking charge.


The Assessor has considered the evidence of both parties and has
determined that the appeal be allowed.


The Assessor’s reasons are as set out.


The Operator should now cancel the parking charge notice forthwith.
At 13:34, on December 31 2013, a parking operative observed the Appellant’s
vehicle parked at the Adam Street car park.

The Operator’s case is that the Appellant breached the car parking
conditions by parking without displaying a valid payment.

The Appellant made representations stating his case. He raised a number of
points and one of them was that the entirety of the charge has to be a
genuine pre-estimate of loss.

The onus is on the Operator to prove its case on the balance of probabilities.
Accordingly, once an Appellant submits that the parking charge is not a
genuine pre-estimate of loss, the onus is on the Operator to produce some
explanation or evidence to tip the balance in its favour. The Operator has
produced a statement which it submits justifies the charge as a pre-estimate
of loss; however, I am not minded to accept this justification.

The Operator must show that the charge sought is a genuine estimate of the
potential loss caused by the parking breach, in this case, the Appellant’s
failure to park without making a valid payment. The Operator has produced
a list of costs; however, these appear to be general operational costs, and
not losses consequential to the Appellant’s breach.

Consequently I must find that the Operator has failed to produce sufficient
evidence to demonstrate that the parking charge is a genuine pre-estimate
of loss.

I need not decide any other issues.

Accordingly, the appeal is allowed.

Welsh_Exile

Holy Block of Text Batman! Perhaps a few more paragraphs would be in order?

But well done!

kirkbyinfurnesslad_2

well done

Can we your warmth and you have our rain pls