PCN - Car Park Management

Coupon-mad

Bradden wrote: »

I’d like to add in a reference to the great quote from coupon mad.. not sure how I would add it with the appropriate legalese….

'The charge must either be one for damages as submitted by the Appellant, or consideration - the price paid for parking - as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the maximum permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay, provided he or she pay the charge. Clearly, permission to park ‘in breach’ is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre-estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge, and so it cannot be consideration.''

I think I would just add that to the end and in fact it's a quote from a POPLA assessor so I would say: In another similar appeal against a UKCPM ticket with similarly misleading signage, the POPLA Assessor found that: 'The charge must either be one for damages as submitted.....blah......

I’d also like to highlight the lack of proper signage at the entrance.. can you please help with the wording.

I think there are examples you can find if you search the forum for 'entrance signs' or look at another example of a POPLA appeal linked in 'How to win at POPLA' in post #3 of the newbies thread. It's a very common paragraph you should track down fairly easily.

Also.. is it worth mentioning their £1.50 surcharge on paying by card?

Yes because it is not allowed - even Council tickets cannot add a surcharge at all. So under the law, private firms could only add a tiny% not a rounded up fee. Tell POPLA that fact.

bye_bye_band_G

The purpose of disabled bays isn't foremost to provide a pretty much guaranteed spot for a disabled person. I wouldn't argue too strongly against a person who asks why a disabled person should have a spot if there's not one for a normal driver. Its primary purpose is to place disabled people closest to the facilities, so that they don't have to walk far. So you judged that your bathroom stop made you more deserving of that close place than someone in pain and or difficulty. Really???
And you don't need to explain GPEOL to me, we're fighting our own ticket. No I don't think private companies should be able to fine you, but in this case if you lose it might make you think twice about doing it again, so that's fine by me.
You won't lose though so please bear this in mind next time.

Coupon-mad

I do agree, bye bye band G (I used to be a Disability Service Manager had two disabled relatives). But we still help everyone to beat the PPCs. We often suggest that when they win the OP may like to donate £10 or £20 to a disability related charity (not Mobilise or DMUK or Disability Now!). Nothing to do with Helen Dolphin who is beyond support on this forum as she is a friend of the PPCs and seems to think only Council Blue Badge Holders might have a need for a disabled bay on private land.

Bradden

I'd just like to say that I am sorry for parking in a disabled bay.. It's not something I make a habit of. On this occasion I made a mistake albeit with mitigating circumstances (in my opinion)/;

Bradden

I've done another draft.. adding in the signage etc. Please let me know what you think..


Dear POPLA,

I am the registered keeper and this is my appeal:

1. Signs - no contract with Driver
See photos - it was dark & no signs were visible. There was no agreement to pay. No consideration/acceptance flowed - so no contract exists. If it was self-ticketing I require proof that the ticketer was trained in the BPA CoP & an explanation of why no grace period was allowed and no signs were lit on site. In such conditions the BPA CoP does not allow ticketing.

Terms are only imported into a contract if they are clear & so prominent that the party 'must' have known of it & agreed. The wording was unlit & unreadable. Even in daylight the terms are misleading, dress up the charge as a 'contractual' fee. It is not; see point 4.

The signage was not readable so there was no valid contract formed between CPM and the driver I believe that CPM place their signs at a height that makes their terms illegible, the small print used is completely unreadable at ground level.. Any photos supplied by CPM to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require CPM to state the height of each sign in their response, to show contemporaneous photo evidence of these signs with proof of compliance as laid down in the TSRGD 2002, the BPA Code of Practice and BSI Standards.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead.
There are sign at the entrance only request that people park in marked bays.

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”.

2) No Locus Standi
This is a site 'agreement' limited to 'issuing tickets'. There is no assignment of rights to UKCPM to enable them to pursue PCNs in the courts in their own name nor to form contracts with drivers.

I put CPM to strict proof of their signed/dated landowner contract & all the terms and restrictions and assignment of any rights in it. The contract must state that CPM can pursue drivers via court & show allrequirements of 7.1 and 7.2 of the BPA CoP (without which there is no authority). This needs to be a full copy and not a basic 'site agreement' template sheet or redacted contract. NB: I am not challenging the 'issuing of PCNs' (anyone can issue a PCN and this is not the matter under appeal).

3) NTK - no keeper liability.
The NTK fails to identify the 'creditor', state a 'period of parking' or meet the requirements of POFA. It could be 'UKCPM' (or the landlord – I assume they are 'The Devere Group” – you have not stated who the lanslord is n )or 'CPM' or 'UK Car Park Management” all of which are mentioned on signs/letters/Notices, leading to uncertainty about who the creditor might be. Alternatively, the creditor could be the owner or lessee of the land, or a managing agent or CPM's client, or another party. It is not for me to guess who the creditor is.

It was an 'immediate' PCN - no Grace Period was allowed - breaching the BPA CoP. And omitting any 'period of parking' on a NTK breaches POFA 2012 and the NTK also fails to repeat all details from the PCN. Omitting wording from paragraph 8 of Schedule4 fails to create a complaint Notice to Keeper and there is therefore no 'keeper liability'.

4) Not a true contractual fee = breach of contract, requires a GPEOL
Although the operator states that the sum sought is a contractual term, the wording on the sign states ‘unauthorised parking may result in your vehicle receiving a PCN'. It is clear from this that breaching the specific conditions stated may result in a parking charge notice and therefore it appears that the amount sought is for those that are parked in breach. This amount would appear to represent liquidated damages which is compensation agreed in advance.

Also as the signs were not lit and I am merely the keeper (not driver) the terms cannot flow from the unlit/unseen sign but can only be interpreted from the Notice to Keeper - which again states the chargeis for 'breach'. UKCPM must show it is a genuine pre-estimate of loss & I contend there was no loss.

5) Unfair terms - Unenforceable Disguised Penalty
The sign & the NTK are ambiguous & contradictory. On the PCN & NTK the sum is stated as a 'contravention' for 'breaching the terms' yet the (unlit) sign misleadingly alleges a 'contractual' sum. If so, there would be a payment mechanism & a VAT invoice. There is none. This is not a transparent contract & is a disguised penalty. Terms must be clear otherwise under the doctrine of contra proferentem, the interpretation that favours the consumer applies.

The OFT on UTCCR 1999:
Group 18(a): unfair financial burdens
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances. A term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.

6) Unfair Payment Charges.
A charge of £1.50 for a debit card payment is a clear breach of recent legislation under the Consumer Rights (Payment Surcharges) Regulations 2012.

Finally I would like to highlight that in another similar appeal against a UKCPM ticket with similarly misleading signage, the POPLA Assessor found that:
'The charge must either be one for damages as submitted by the Appellant, or consideration - the price paid for parking - as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the maximum permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay, provided he or she pay the charge. Clearly, permission to park ‘in breach’ is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine preestimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge, and so it cannot be consideration.''

ColliesCarer

Overall you are covering all the right points but given the lesandmandy error I would suggest you include the POPLA assessor quote in the not a GPEOL point and also strengthen that point to include other quotes from the Ntk and rejection letter that indicate this is actually a charge for breach of contract- have included a suggestion below in quotes.

Would also suggest you include your point headings as a list after your opening sentence - makes it easier for the assessor not to miss anything
and make no Gpeol point 1 and No locus standi point 2 - they are the points that win most often.

In addition add a sentence at the end of your appeal saying something like "This concludes my appeal which I respectfully request is upheld"

4) Not a true contractual fee = breach of contract, requires a GPEOL
The operator has not made clear the basis of their charge and makes contradictory claims; on the one hand claiming that the sum sought is a contractual term and on the other makes a number of statements that would indicate the charge is actually for breach e.g.

• the wording on their sign states ‘unauthorised parking may result in your vehicle receiving a PCN'
• the Notice to Keeper states charges are issued to "those drivers who break the terms and conditions of parking"
• in their letter rejecting my appeal they further state that "a breach of the terms and conditions of parking occured".
• Also as the signs were not lit and I am merely the keeper (not driver) the terms cannot flow from the unlit/unseen sign but can only be interpreted from the Notice to Keeper - which as I have pointed out above states the charge is for 'breach'.

The charge must either be one for damages for breach or a fee paid for parking (i.e. consideration) - it cannot be both.
In order for the charge to be consideration, the parking charge must be paid in return for something, which in the case of this alleged event would mean the driver was given permission to park in a disabled bay without displaying a blue badge providing he or she paid a fee, but clearly permission to park ‘in breach’ can not be granted, and so I contend the parking charge cannot be a contractual price but is in fact a sum sought as damages.

I would like to highlight that in another similar appeal against a UKCPM ticket with similarly misleading signage, POPLA Assessor Marina Kapour found that:
“The charge must either be one for damages as submitted by the Appellant, or consideration - the price paid for parking - as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the maximum permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay, provided he or she pay the charge. Clearly, permission to park ‘in breach’ is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine preestimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge, and so it cannot be consideration.''

It is clear from all the above, and I assert, that this charge was actually issued for an alleged breach of the parking conditions and therefore the charge is in fact a sum sought as damages, consequently I put UKCPM to strict proof that the charge is a genuine pre estimate of the loss caused by the parking breach and I contend there was no loss.

Bradden

Thank you for the tips.. is this better?


Dear POPLA,

I am the registered keeper and this is my appeal:

In summary I base my appeal on the following points:

1) Not a true contractual fee = breach of contract, requires a GPEOL
2) No Locus Standi
3) Signs - no contract with Driver
4) NTK - no keeper liability.
5) Unfair terms - Unenforceable Disguised Penalty
6) Unfair Payment Charges.



1) Not a true contractual fee = breach of contract, requires a GPEOL
Although the operator states that the sum sought is a contractual term, the wording on the sign states ‘unauthorised parking may result in your vehicle receiving a PCN'. It is clear from this that breaching the specific conditions stated may result in a parking charge notice and therefore it appears that the amount sought is for those that are parked in breach. This amount would appear to represent liquidated damages which is compensation agreed in advance.

The charge must either be one for damages for breach or a fee paid for parking (i.e. consideration) - it cannot be both.
In order for the charge to be consideration, the parking charge must be paid in return for something, which in the case of this alleged event would mean the driver was given permission to park in a disabled bay without displaying a blue badge providing he or she paid a fee, but clearly permission to park ‘in breach’ can not be granted, and so I contend the parking charge cannot be a contractual price but is in fact a sum sought as damages.

I would like to highlight that in another similar appeal against a UKCPM ticket with similarly misleading signage, POPLA Assessor Marina Kapour found that:
“The charge must either be one for damages as submitted by the Appellant, or consideration - the price paid for parking - as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the maximum permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay, provided he or she pay the charge. Clearly, permission to park ‘in breach’ is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine preestimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge, and so it cannot be consideration.'' '

Also as the signs were not lit and I am merely the keeper (not driver) the terms cannot flow from the unlit/unseen sign but can only be interpreted from the Notice to Keeper - which again states the chargeis for 'breach'. UKCPM must show it is a genuine pre-estimate of loss & I contend there was no loss.

It is clear from all the above, and I assert, that this charge was actually issued for an alleged breach of the parking conditions and therefore the charge is in fact a sum sought as damages, consequently I put UKCPM to strict proof that the charge is a genuine pre estimate of the loss caused by the parking breach and I contend there was no loss.


2) No Locus Standi
This is a site 'agreement' limited to 'issuing tickets'. There is no assignment of rights to UKCPM to enable them to pursue PCNs in the courts in their own name nor to form contracts with drivers.

I put CPM to strict proof of their signed/dated landowner contract & all the terms and restrictions and assignment of any rights in it. The contract must state that CPM can pursue drivers via court & show allrequirements of 7.1 and 7.2 of the BPA CoP (without which there is no authority). This needs to be a full copy and not a basic 'site agreement' template sheet or redacted contract. NB: I am not challenging the 'issuing of PCNs' (anyone can issue a PCN and this is not the matter under appeal).


3) Signs - no contract with Driver
See photos - it was dark & no signs were visible. There was no agreement to pay. No consideration/acceptance flowed - so no contract exists. If it was self-ticketing I require proof that the ticketer was trained in the BPA CoP & an explanation of why no grace period was allowed and no signs were lit on site. In such conditions the BPA CoP does not allow ticketing.

Terms are only imported into a contract if they are clear & so prominent that the party 'must' have known of it & agreed. The wording was unlit & unreadable. Even in daylight the terms are misleading, dress up the charge as a 'contractual' fee. It is not; see point 4.

The signage was not readable so there was no valid contract formed between CPM and the driver I believe that CPM place their signs at a height that makes their terms illegible, the small print used is completely unreadable at ground level.. Any photos supplied by CPM to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require CPM to state the height of each sign in their response, to show contemporaneous photo evidence of these signs with proof of compliance as laid down in the TSRGD 2002, the BPA Code of Practice and BSI Standards.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead.
There are sign at the entrance only request that people park in marked bays.

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”.


4) NTK - no keeper liability.
The NTK fails to identify the 'creditor', state a 'period of parking' or meet the requirements of POFA. It could be 'UKCPM' (or the landlord – I assume they are 'The Devere Group” – you have not stated who the lanslord is n )or 'CPM' or 'UK Car Park Management” all of which are mentioned on signs/letters/Notices, leading to uncertainty about who the creditor might be. Alternatively, the creditor could be the owner or lessee of the land, or a managing agent or CPM's client, or another party. It is not for me to guess who the creditor is.

It was an 'immediate' PCN - no Grace Period was allowed - breaching the BPA CoP. And omitting any 'period of parking' on a NTK breaches POFA 2012 and the NTK also fails to repeat all details from the PCN. Omitting wording from paragraph 8 of Schedule4 fails to create a complaint Notice to Keeper and there is therefore no 'keeper liability'.


5) Unfair terms - Unenforceable Disguised Penalty
The sign & the NTK are ambiguous & contradictory. On the PCN & NTK the sum is stated as a 'contravention' for 'breaching the terms' yet the (unlit) sign misleadingly alleges a 'contractual' sum. If so, there would be a payment mechanism & a VAT invoice. There is none. This is not a transparent contract & is a disguised penalty. Terms must be clear otherwise under the doctrine of contra proferentem, the interpretation that favours the consumer applies.

The OFT on UTCCR 1999:
Group 18(a): unfair financial burdens
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances. A term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.


6) Unfair Payment Charges.
A charge of £1.50 for a debit card payment is a clear breach of recent legislation under the Consumer Rights (Payment Surcharges) Regulations 2012.

This concludes my appeal which I respectfully request is upheld

Coupon-mad

Looks good to me.

Bradden

Thank you... I'll go online and process the appeal later today.. fingers crossed!

Umkomaas

4) NTK - no keeper liability.
The NTK fails to identify the 'creditor', state a 'period of parking' or meet the requirements of POFA. It could be 'UKCPM' (or the landlord – I assume they are 'The Devere Group” – you have not stated who the lanslord is n )or 'CPM' or 'UK Car Park Management” all of which are mentioned on signs/letters/Notices, leading to uncertainty about who the creditor might be. Alternatively, the creditor could be the owner or lessee of the land, or a managing agent or CPM's client, or another party. It is not for me to guess who the creditor is.

This doesn't look right to me. Was this a note from someone else to you in an earlier post?