Private Land Parking ticket

trisontana

As usual with this sort of notice, you have to ask two questions, Are there facilities to pay that amount on site if you agree with that notice? And when you have paid does that mean you can park there for ever after that on-off charge?

nigelbb

It's a penalty dressed up as an agreed charge. It's only the tinpot little PPCs that try & pretend that these ludicrous charges are actually the tariff for services rendered. (What a bargain - I can park outside a marked bay for only £100!). The large operators like PE, NCP, Vinci, APCOA etc etc who have access to decent legal advice all know that this nonsense will never stand up in court so try & use the only slightly less flawed concept that the motorist entered into a contract for parking with the PPC (or not).

Jack_spratt

No there aren't facilities to pay on site & the wording suggests that if the driver had the ability to pay this that meant parking there would be ongoing as there is nothing to the contrary.
I've just rechecked the windscreen ticket, this states "Notice of breach of terms & conditions of this private car park/ private area. You have failed to comply with the terms clearly displayed on warning notices provided" as they have used "breach of terms & conditions" I think I should highlight the ticket wording to substantiate no GPEOL. Can you advise if this is ok?

spacey2012

Take measure to make sure they can not rock the permit off the dash again.
It is very easy with a simple technique to get it from the dash to the floor or seat.
Kerching £100

Coupon-mad

Jack_spratt wrote: »

No there aren't facilities to pay on site & the wording suggests that if the driver had the ability to pay this that meant parking there would be ongoing as there is nothing to the contrary.
I've just rechecked the windscreen ticket, this states "Notice of breach of terms & conditions of this private car park/ private area. You have failed to comply with the terms clearly displayed on warning notices provided" as they have used "breach of terms & conditions" I think I should highlight the ticket wording to substantiate no GPEOL. Can you advise if this is ok?

Yes you must do that but you need to be very thorough with your wording because we have just had a case lost where the Assessor looked at a sign but not at the NTK wording (even though the appellants, 'lesnmandy', specifically stated it). I wrote their POPLA appeal and they are complaining to POPLA but we want to avoid this happening to you.

No rushing your POPLA appeal as you are on stickier ground than most with that sign! But check how long you have, using the ParkingCowboys 'code checker' link in the 'Private parking ticket?Newbies read this first!' sticky.

So you will need even more than on their thread. Read their one first (it's not the same PPC but broadly the same issue) and then show us your draft appeal suitably adjusted - such as with that 'beefed up' signage wording and a self ticketing heading - send me a pm to remind me to give you the self-ticketing wording I wrote for someone else on pepipoo.

Also check the PCN and/or NTK against the POFA 2012...does their ticket bother to state POFA2012 and registered keeper liability applies or not (check ALL small print yourself)? The Act is linked in the Newbies sticky thread and is easy to compare a PCN or NTK to because the requirements of a PCN and NTK are in bullet points.

Have you never implied who was driving (no 'I parked' in any first appeal?

Are there NO entrance signs at all?

Would the driver have driven past that sign, where is it on site, are there lots of signs?

Was it dark, is the signage lit?

Jack_spratt

Hi Coupon-mad, I have just over a week to submit. I have looked through les&mandys thread, I see where I need to make myself clear & pay attention to correct wording. I was not the driver at the time & have not disclosed who was. The ticket doesn't have any reference to POFA2012 and whether registered keeper liability applies or not. There are no entrance signs from the main road to the private road where the parking bays are, there is possibly one sign on the right on a fence just before the bays about 8 metres from the entrance but I need to recheck this as on my visit I missed this but looking on google maps there may be one there (this is an old map though). There are about 8 signs in total with around 15 metres between them either side of the private road, these are unlit but the car was parked during the day. I believe the driver may have passed one sign which wasn't facing the car but this wasn't anywhere near the entrance. I will revisit the site & take more photos in daylight to be sure of this.
I will send you a pm in due course.
Thanks for all your advice, it is appreciated.

Coupon-mad

I was not the driver at the time & have not disclosed who was.

Good, you played a blinder! You responded to the windscreen ticket and they gave you a POPLA code even though they didn't know who you were. Nice for you, bad for them, and an approach some of us have been discussing as a good one anyway for these random small fry PPCs!

Actually it's too long to send by pm so here you go, a POPLA appeal to work with and submit asap:




Dear POPLA,
VERIFICATION CODE XXXXXXXXXX

I am the registered keeper in this instance and this is my appeal:

1) NO KEEPER LIABILITY UNDER POFA 2012
I was not the driver at the time & have not disclosed who was. I am merely the registered keeper. To establish 'keeper liability' under POFA2012, an Operator must have served a compliant 'Notice to Keeper'. They did not, because they seem to have assumed that the appeal had come from the driver. It had not, so they did not know the driver details and would have had to have served a NTK anyway if they were to attempt to suggest that I am liable as keeper. This Operator has failed to establish 'keeper liability' under POFA 2012 so the charge should be cancelled.

2) UNCLEAR & NON-COMPLIANT SIGNAGE FORMING NO CONTRACT WITH DRIVER
Following the PCN I visited the site, where there are no signs that can be seen when driving into this car park. Secure-A-Space needs to show evidence and signage map/photos specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see /read them when deciding to drive in. The BPA CoP states “entrance signs, located at the entrance to the car park, must tell drivers that the car park is managed and that there are terms and conditions which they must be aware of.'' 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 and failed to establish any contract with the driver prior to parking.

In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in and where the plaintiff had parked often before. He said: “He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”

In a broadly comparable January 2014 POPLA decision number 1773123003, the Assessor upheld the appeal on 'entrance signage' and said 'As the 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 Operator has produced pictures of two signs on site but I cannot tell the location of these signs. The Operator has also produced a site map showing where signs are located.I cannot find on the balance of probabilities, where the Appellant submits there was no entrance sign at the material time, that the appellant would have seen signs if parked near the front half of the car park. Taking together all of the evidence before me, I must find that the Operator has failed to produce sufficient evidence to demonstrate that it had taken reasonable steps to bring the terms of parking to the attention of the Appellant''.

3) SELF TICKETING - UNFAIR PRACTICE AND BREACH OF THE BPA CODE OF PRACTICE, LEADING TO BREACH OF CPUTR 2008
It appears that the Operator's business model described on their website: http://www.secureaspace.co.uk/id3.html
involves 'simple' self-ticketing. As such, it must comply with the BPA CoP, section 15, 'Third party sub-contractors and ‘self-ticketing’:

'15.2 If you provide a service to a customer that allows the customer to issue parking charge notices themselves (‘self-ticketing services’) and you process the tickets, then you are responsible for making sure the customer keeps to the Code. You must provide your customer with an up-to-date copy of the Code and get their signed confirmation that they have read the Code and agree to keep to it.'

I put Secure-A-Space to strict proof of the 'signed confirmation' from the person who issued a PCN to the driver. Specifically, proof that the person had read the current June 2013 Code and agreed to keep to it, prior to this event. Otherwise the inference will be that this PCN was issued by a person not familiar with nor following the BPA CoP, which would evidence non-compliance. This would be an act of impropriety, indeed negligence - an unfair commercial practice which cannot give rise to an enforceable charge.

For a private firm to be signed up to a Code of Practice and yet not show full compliance, would be a breach of the CPUTR 2008 reg3 in that it would be 'contrary to the requirements of professional diligence' to allow self ticketing outwith the scope of the current applicable BPA CoP. Further, the CPUTR 2008 'Outright prohibitions' Schedule 1 lists 31 commercial practices which are considered unfair in all circumstances and which are prohibited. This includes 6.1 'Claiming that a trader (including his commercial practices) has been approved, endorsed or authorised by a public or private body when the trader, the commercial practices have not or making such a claim without complying with the terms of the approval, endorsement or authorisation.'

4) THE OPERATOR HAS NO TITLE, STANDING NOR AUTHORITY TO PURSUE CHARGES NOR FORM CONTRACTS WITH DRIVERS
The Operator does not own the land and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Under the BPA CoP Section 7, a contract must specifically allow the Operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. I require sight of the contract with the landowner as I believe it is not compliant with the CoP and that it identifies Secure-A-Space as a mere site agent, under a restricted licence to provide a service but not assigning any title or rights that could allow the Operator to have any legal case against a driver or keeper.

If Secure-A-Space produce a 'witness statement' or basic letter of agreement in lieu of the contract, I reject that since there is no proof that the alleged signatory has ever seen the relevant contract terms, or indeed is even an employee of the landowner, or signed it on a date shown. In fact, the occupier of the flat telephoned the Housing Association who said that they 'had no interest in this matter' so I doubt this Operator has their authority/assignment of title.

5) UNFAIR TERMS - BREACH OF UNFAIR CONTRACT TERMS ACT 1977 & BREACH OF UNFAIR TERMS IN CONSUMER CONTRACTS REGULATIONS 1999
The terms that the Operator in this case are alleging gave rise to a contract were not reasonable, not individually negotiated and caused a significant imbalance to my potential detriment. This charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘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.’

In the Unfair Terms in Consumer Contracts Regulations 1999:- ''5.—(1) 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. (2) 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.''

This Operator may argue that their signs create a 'contractual charge' but their PCN states "Notice of breach of terms & conditions of this private car park/ private area. You have failed to comply with the terms..." It seems clear that the signage merely obfuscates the true basis for the 'charge' which is not transparent and is in fact a hidden penalty.

The Office of Fair Trading, Unfair Contract Terms Guidance:
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'

I contend this describes the charge exactly as an 'unfair financial burden' which produces the same effect as a penalty clause. The charge is designed ostensibly to be a deterrent, but is clearly a disguised penalty and issued by a third party which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss (which was nothing) if argued to be a breach of contract situation.

6) NOT A GENUINE PRE-ESTIMATE OF LOSS
Notwithstanding the signage - which was not seen anyway - the PCN states "Notice of breach of terms & conditions of this private car park/ private area. You have failed to comply with the terms..." As such, the charge must be a genuine pre-estimate of loss or liquidated damages. There can have been no loss arising from this incident either to Secure-A-Space or to the land owner.

Neither can Secure-A-Space lawfully include their operational tax-deductible business running costs (for example, by erecting signage and employing administration staff) in any 'loss' claimed. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, if no breach occurred, the cost of parking enforcement would still have been the same. In their website already linked, Secure-A-Space say: "We...even send you £20.00 for every vehicle that pays their Parking Charge Notice" This is clearly a 'bounty payment' which must be listed and balanced against any pre-estimate of loss stated (not against the costs of running the business which does not equate to pre-estimate of loss). I would also require Secure-A-Space to declare who receives that bounty payment at this site - if it is not the Housing Association then it must be revenue for the ticketer and cannot be a genuine pre-estimate of loss.

In view of the above appeal points, I request that the parking charge is cancelled by POPLA.


registered keeper's name

Jack_spratt

Thanks so much Coupon-mad, will give this a thorough read through tonight, it looks like all bases are covered. I won't be able to get more photos of the site which I'd like to include in my appeal until Saturday, so that will be the earliest I can send the appeal off. Will post on here when sent. Thanks again.

Coupon-mad

You should win it purely on the fact you are the keeper not driver - not liable! Like I said, you played this well from the start and they never asked who you were but were daft enough to give you a POPLA code. Their carefully-worded sign can't save them from such stupidity at their end!

salmosalaris

With this approach timing is critical
1.appeal the NtD near the 28 day deadline so that it is received by day 28. No mention of who was driving .
2. Submit POPLA appeal only when the PPC can't send out a compliant NtK in time , ie within. 56 days of NtD
3. In POPLA appeal you appeal as the RK , no compliant NtK served , no keeper liability and PPC have provided no proof of driver .

Should win