Read but still confused...!!

Coupon-mad

Your point #1 is based around a BPA CoP breach - and a BPA CoP breach does NOT win any POPLA appeal. I would weed out a lot of the actual quotes from the BPA CoP as they don't win an appeal.

Signage IS a valid appeal point but it needs to be more geared towards contract law. So, you say that the signage was not prominent enough that it MUST have been seen and understood by the driver, and as such there was no contract formed. Hidden in among all the BPA CoP quotes you do have this good sentence: 'there was categorically no contract established between the driver and CP Plus' which in fact is the main point you need to make. So the title of point #1 needs to be Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver. And the bit beneath can be a lot more concise without the BPA CoP quotes.

Your point #3 needs more information, try this version I just wrote on pepipoo for the 'landowner contract' and there is an extra 'unfair terms' point you may like to add too:

http://forums.pepipoo.com/index.php?showtopic=87292

And your point #4 begs the question - did CP Plus identify the 'creditor' (using that word)? If not then add that in as another NTK omission and add something like this as well (because a quote from POFA2012 could win an appeal, as it is the relevant law):

I am not liable for any charge if no Notice to Keeper has been properly 'given' under POFA 2012. This Operator has omitted all the below required wording from paragraph 9, Schedule 4, of POFA 2012, namely {THINK ABOUT THIS AND PICK OUT THE WORDING NOT CORRECTLY STATED, AND WAS THE NTK RECEIVED BY DAY 15?}:

''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;
(i)specify the date on which the notice is sent (where it is sent by post) or given (in any other case).

And how about an ANPR reliability paragraph, to tie CP Plus in knots and take up lots of their time to refute?!

https://forums.moneysavingexpert.com/discussion/comment/63744997#Comment_63744997

That should be enough!

TalkGirl_uk

@Coupon-Mad Thanks for your input I will have a look at it and add in your changes.

TalkGirl_uk

Okay this is my revised appeal. I still have to include APNR tomorrow but I wanted to make sure I had a chance to read through the material you sent.

@ Coupon-mad, I hope you don't mind but I have take chunks of what you have written around the landowner contract that you directed me to.

Obviously I would welcome your feedback.

Dear POPLA,

On the XXXX, CP Plus issued a parking charge notice highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system as having “…exceeded the free parking period, and [that] payment was not received for parking in excess of the free period.”

As the registered keeper I wish to refute these charges on the following grounds:
1) The amount being claimed is not a genuine pre-estimate of loss to the company or the landowner.
2) Signage does not comply with the British Parking Associations (BPA) Code of Practice
3) A lack of the PPC’s proprietary interest in the land and no contract with the landowner
4) The Parking Charge Notice fails to comply with the Protection of Freedoms Act 2012.

1) The amount being claimed is not a genuine pre-estimate of loss to the company or the landowner
The demand for a payment of £90 as noted within the Parking Charge is unreasonable and exceeds any appropriate amount of loss suffered by the Landowner. There was no damage nor obstruction caused, so there can be no loss arising from the incident.

In this case CP Plus has failed to provide any calculation to show how the £90 penalty charge is arrived at, and whether it is an actual or pre-estimated loss. Given that CP Plus charge the same fixed charge to any alleged breach of contract (whether serious/damaging, or trifling in this case), it is clear that there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

To offer further support for this argument, in a recent email received from CP Plus (date 10/01/2014) it was further highlighted to the Appellant that the £90 being demanded is not a genuine pre-estimate of loss to the company or landowner. In the received email it stated that “The amount of the charge is well within BPA guidelines, and reflects the cost to our clients, both in terms of congestion caused at this site by drivers abusing the parking restrictions, and our fees for enforcing these restrictions, while installing and maintaining the necessary equipment to do so.”

Under section 19 of the BPA Code of Practice it states the following:
19.2 In the Code ‘parking charges’ means charges arising from enforcement under three different circumstances:
• When a motorist breaks the terms and conditions of a parking contract
• When a motorist trespasses by parking without permission
• Agreed charges that are advertised in the contract

Based on the information offered it would suggest that the figure being demanded is not a genuine pre-estimate loss earning due to the fact that operational costs, such as the installing and the maintenance of equipment should not be included. Therefore, without a genuine breakdown of the actual or pre-estimated costs, I respectfully request that my appeal is upheld and the charge be dismissed.

2) Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver
To support this claim further the following areas of dispute are raised:
• There was categorically no contract established
• Poor placement of entrance and specific parking terms signage
• Inappropriate contrast and illumination of signs

Within the BPA Code of practice state that:
18.1 “A driver who uses your private car park with your permission does so under a licence or contract with you….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.”

Baring this paragraph in mind, there was categorically no contract established between the driver and CP Plus. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore there can be no acceptance of an agreement if the other person is without knowledge of the offer. When the driver arrived at the service area it was in the hours of darkness and therefore impossible to a read let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs on the service area are poorly located and the terms and conditions illegible.

To offer further context to this point, the appellant would like to highlight that the initial entrance sign is located on the bend of two roads, at approximately 5 meters away from the road in an area that is not sufficiently illuminated. Furthermore, the next observable sign is located on the bend into the car park on the passenger side of a standard right-hand drive vehicle. Considering these points it would have been exceptionally difficult and potentially dangerous for the driver to see and read the contractual information when entering the service area and therefore at the time had no idea that any contract or restrictions applied.

To further support the claims, the BPA Code of Practice, Appendix B sets out strict requirements for entrance signage, including that “Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times.” and that “…sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.”
Due to the fact that the sign is located on a bend approximately 5 meters back and in an area not covered by direct lighting or lighting from the car park then it would suggests that the terms and conditions of the contract would have been illegible to the driver at this time of night.

Based on these points, it is believed that CP Plus are not complying with the BPA Code of Practice with regard to position, clarity of terms and conditions and ensuring the appropriate illumination of signs. Therefore, without clear, compliant signs there was no contract established and therefore no breach of that alleged contract either. I therefore, respectfully request that my appeal is upheld and the charge dismissed.

3) A lack of the PPC’s proprietary interest in the land and no contract with the landowner
It is believed that CP Plus does not own this car park and are merely acting as agents for the owner/occupier. Therefore, since no evidence has been provided it is believed that they are not lawfully entitled to demand money from the driver due to the fact that they do not own nor have interest/assignment of the title of the land in question. Therefore, I ask that CP Plus be ask to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner. Specifically, the appellant would like to see written proof that CP Plus is entitled to pursue parking charges themselves. Documentary evidence must be pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

4) The Parking Charge Notice fails to comply with the Protection of Freedoms Act 2012
The final point raised within this appeal is that the appellant is not liable for any charges if the Notice to Keeper has not been properly ‘given’ under the Protection of Freedom Act (POFA) 2012. CP Plus has omitted the following wording from paragraph 9 (2), of schedule 4, of POFA 2012:
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
h) identify the creditor and specify how and to whom payment or notification to the creditor may be made;

Upon receiving the Parking Charge the document lacked any description detailing the parking charges owed from the alleged extended stay and failed to identify the ‘creditor’ to whom payment was being made. The appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation. I therefore, respectfully request that my appeal is upheld and the charge dismissed.

Coupon-mad

Yep that's good, then finish with the long ANPR paragraph suitably tweaked to suit.


This bit :

'Therefore, I ask that CP Plus be ask to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner.'

needs to be clearer what the contract has to grant:

' Therefore, I ask that CP Plus be ask to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts (not just a vague commercial agreement to 'issue' PCNs). '

TalkGirl_uk

Okay hopefully this is it. I have added the ANPR point and I have changed the wording suggested. Just on an off thought is there any point adding a line around asking them to provide signed proof of postage around the multiple appeal notices? Although I cant justify why I think it might be of any use it just seems like it could be so ignore me if its not.

Dear POPLA,

On the XXXXX, CP Plus issued a parking charge notice highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system as having “…exceeded the free parking period, and [that] payment was not received for parking in excess of the free period.”

As the registered keeper I wish to refute these charges on the following grounds:
1) The amount being claimed is not a genuine pre-estimate of loss to the company or the landowner.
2) Signage does not comply with the British Parking Associations (BPA) Code of Practice and was not prominent enough to form any contract
3) CP Plus lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass
4) The Parking Charge Notice fails to comply with the Protection of Freedoms Act 2012
5) ANPR Accuracy and Compliance


1) The amount being claimed is not a genuine pre-estimate of loss to the company or the landowner
The demand for a payment of £90 as noted within the Parking Charge is unreasonable and exceeds any appropriate amount of loss suffered by the Landowner. There was no damage nor obstruction caused, so there can be no loss arising from the incident.

In this case CP Plus has failed to provide any calculation to show how the £90 penalty charge is arrived at, and whether it is an actual or pre-estimated loss. Given that CP Plus charge the same fixed charge to any alleged breach of contract (whether serious/damaging, or trifling in this case), it is clear that there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

To offer further support for this argument, in a recent email received from CP Plus (date 10/01/2014) it was further highlighted to the Appellant that the £90 being demanded is not a genuine pre-estimate of loss to the company or landowner. In the received email it stated that “The amount of the charge is well within BPA guidelines, and reflects the cost to our clients, both in terms of congestion caused at this site by drivers abusing the parking restrictions, and our fees for enforcing these restrictions, while installing and maintaining the necessary equipment to do so.”

Under section 19 of the BPA Code of Practice it states the following:
19.2 In the Code ‘parking charges’ means charges arising from enforcement under three different circumstances:
• When a motorist breaks the terms and conditions of a parking contract
• When a motorist trespasses by parking without permission
• Agreed charges that are advertised in the contract

Based on the information offered it would suggest that the figure being demanded is not a genuine pre-estimate loss earning due to the fact that operational costs, such as the installing and the maintenance of equipment should not be included. Therefore, without a genuine breakdown of the actual or pre-estimated costs, I respectfully request that my appeal is upheld and the charge be dismissed.

2) Signage does not comply with the BPA Code of Practice and was not prominent enough to form any contract with a driver
To support this claim further the following areas of dispute are raised:
• There was categorically no contract established
• Poor placement of entrance and specific parking terms signage
• Inappropriate contrast and illumination of signs

Within the BPA Code of practice state that:
18.1 “A driver who uses your private car park with your permission does so under a licence or contract with you….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.”

Baring this paragraph in mind, there was categorically no contract established between the driver and CP Plus. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore there can be no acceptance of an agreement if the other person is without knowledge of the offer. When the driver arrived at the service area it was in the hours of darkness and therefore impossible to a read let alone understand the terms and conditions being imposed. Upon further research it is apparent that the initial entrance signs on the service area are poorly located and the terms and conditions illegible.

To offer further context to this point, the appellant would like to highlight that the initial entrance sign is located on the bend of two roads, at approximately 5 meters away from the road in an area that is not sufficiently illuminated. Furthermore, the next observable sign is located on the bend into the car park on the passenger side of a standard right-hand drive vehicle. Considering these points it would have been exceptionally difficult and potentially dangerous for the driver to see and read the contractual information when entering the service area and therefore at the time had no idea that any contract or restrictions applied.

Furthermore, to support these claims, the BPA Code of Practice, Appendix B sets out strict requirements for entrance signage, including that “Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times.” and that “…sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.”
Due to the fact that the sign is located on a bend approximately 5 meters back and in an area not covered by direct lighting or lighting from the car park then it would suggests that the terms and conditions of the contract would have been illegible to the driver at this time of night.

Based on these points, it is believed that CP Plus are not complying with the BPA Code of Practice with regard to position, clarity of terms and conditions and ensuring the appropriate illumination of signs. Therefore, without clear, compliant signs there was no contract established and therefore no breach of that alleged contract either. I therefore, respectfully request that my appeal is upheld and the charge dismissed.

3) CP Plus lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass

It is believed that CP Plus does not own this car park and are merely acting as agents for the owner/occupier. Therefore, since no evidence has been provided it is believed that they are not lawfully entitled to demand money from the driver due to the fact that they do not own nor have interest/assignment of the title of the land in question. Therefore, I ask that CP Plus be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts.. Documentary evidence must be pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed ‘witness statement’ slip of paper saying it exists.

4) The Parking Charge Notice fails to comply with the Protection of Freedoms Act 2012
The final point raised within this appeal is that the appellant is not liable for any charges if the Notice to Keeper has not been properly ‘given’ under the Protection of Freedom Act (POFA) 2012. CP Plus has omitted the following wording from paragraph 9 (2), of schedule 4, of POFA 2012:
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
h) identify the creditor and specify how and to whom payment or notification to the creditor may be made;

Upon receiving the Parking Charge the document lacked any description detailing the parking charges owed from the alleged extended stay and failed to identify the ‘creditor’ to whom payment was being made. The appellant feels that the operator has failed to adhere to the conditions outlined under POFA 2012 and therefore breaches the documented legislation. Therefore I respectfully request that my appeal is upheld and the charge dismissed.

5) ANPR Accuracy and Compliance
Considering that CP Plus is suggesting that the driver allegedly overstayed 39 minutes (above the 120 minute ‘Grace Period’) I call into question the ANPR system accuracy. The time of 39 minutes is so minuscule that it would require an ANPR system with almost perfect manufacturer-stated accuracy.

Therefore I require the Operator to present records which prove:
• The Manufacturers' stated % reliability of the exact ANPR system used here
• The dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images

These documents are fundamentally important as the entirety of the charge is being founded on two images purporting to show my vehicle entering and exiting at specific times. Even with a firm understanding of probability laws, CP Plus expects me to believe that their system has a zero failure rate and zero buffering delay. Therefore, CP Plus must be expected to produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system previously ruled against. In the case of ParkingEye verses Fox-Jones on the 8th November 2013 the case was dismissed by the Judge, ruling that the equipment was “…fundamentally flawed...” on the basis that the synchronisation of the camera pictures and the time had been called into question. The Operator was unable to rebut the claim.

Considering this case, it is believed that a local camera captured the image via a remote sever and then added the time stamp. As the two separate components are disconnected by the internet and do not share a common ‘time synchronisation system’, there is no proof that the time stamp included on the images is an actual representation of the exact time the image was captured. Furthermore, as the Operator appears to use WiFi the ANPR system succumbs to a buffering delay when receiving information, suggesting that “live” data is not really live but a delayed response. Therefore without a synchronised time stamp there is no evidence that the image is ever truely time stamped accurately. As a result I contend that any ANPR ‘evidence’ put forth by CP Plus be considered as unreliable as the ParkingEye system previously mentioned.

Coupon-mad

Just on an off thought is there any point adding a line around asking them to provide signed proof of postage around the multiple appeal notices?

Not sure what you mean? Your POPLA appeal will win anyway, but I would amend the intro to the ANPR paragraph, as 39 minutes is not as 'minuscule' as the one minute that I wrote the ANPR paragraph about in the first place. And because 120 mins isn't the grace period as such.

So change this:

Considering that CP Plus is suggesting that the driver allegedly overstayed 39 minutes (above the 120 minute ‘Grace Period’) I call into question the ANPR system accuracy. The time of 39 minutes is so minuscule that it would require an ANPR system with almost perfect manufacturer-stated accuracy.

to this:

Considering that CP Plus is suggesting that the driver allegedly overstayed 39 minutes (above the 120 minutes they claim is allowed under their contract/agreement with the landowner) I call into question the ANPR system accuracy. Therefore I require the Operator to present records which prove:

ABN

Can’t comment on the content as not wise enough but a couple of points.

Bullet point 4 states "The final point raised within this appeal is that" but then you have a further bullet point 5.

Also the bullet points 1,2&4 end “Therefore I respectfully request that my appeal is upheld and the charge dismissed.” I would have thought that including that statement just once as a concluding paragraph would be better.

TalkGirl_uk

Brilliant thanks all. Once I've made the relevant changes is it ready to go?

Coupon-mad

Yep, send it.

TalkGirl_uk

Sent, now just to wait. Any idea how long i could be waiting?

Thank you for all of your help.