Ticket on Private land outside own flat

SMarg

I have highlighted bold and underlined some areas which may not be applicable to a resident


APPEAL RE: XXXXXX(PPN) CHARGE ******/******,*********
CAR PARK **/**/2013, VEHICLE REG: **** ***
I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.

1. Neither the parking company or their client has proved that they have planning consent to charge motorists for any alleged contravention.

2. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.

3. The signage at the car park was not compliant with the British Parking Association standards and there was no valid contract between the parking company and the driver.

4. The amount demanded is not a Genuine Pre-estimate of loss.

Here are the detailed appeal points.

1. No right to charge motorists for overstaying
Planning consent is required for car parks and have conditions that grant permission as the car park provides a service to the community. To bring in time limits, charges and ANPR cameras, planning consent is required for this variation. I have no evidence that planning consent was obtained for this change and I put the parking company to strict proof to provide evidence that there is planning consent to cover the current parking conditions and chargeable regime in this car park.

I note that the parking company has not been engaged by the landowner, but by a lessee or tenant of the land. 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 personally visited the site in question (Is this relevant as a resident?). I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. 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 (take out as not relevant to resident?) 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 (applicable to resident?), 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. Should this paragraph be removed?
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 flowing 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.

The parking company 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 at the time. Note:- the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and cannot include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.

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 an element of profit included and are not allowed to be imposed by parking companies.

This concludes my appeal.

The_Deep

Smarg, I am not saying that you will always trump the PPC's ace, only that, in most cases you will. I am surprised that you have so quietly accepted the Managing agent's insouciance, remember, they are supposed to have your best interests at heart, and, if they upset your tenant's quiet enjoyment, you have a right to call them to account, kick !!!! man, remember you can, if there are enough of you kick them out.

Penalising occupiers for fallen parking permits is not parking management, it is extortion. That £100, who gets it? Not you, the landlord i'll be bound. No, it is probably divied up between the PPC and the Managing Agents. Tell them you want a reduction in your management fees.

ote, m

SMarg

Her father as the landlord got in touch with the agent and tore a strip off them and got nowhere. I also tried and failed. Their answer was that they had handed over responsibility for the parking to PTL and couldn't get involved. I told them they could and should as she was a resident with a permit. Nothing. Didn't want to know.

We are where we are at the moment.

Coupon-mad

Planning Consent won't be relevant to a (not new) block of flats car park - or at least it won't win a POPLA case. So remove point #1.

And remove the bits you have highlighted, but make sure you still have an 'unclear signage' paragraph as it makes them have to come up with a map and photos which increases the chances of them getting it wrong.

And this (below) IMHO isn't a strong paragraph as you would NOT accept a witness statement, so change this:

'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 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.

to this:

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. Nor would a witness statement show whether there is a payment made by either party within the contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow PTL to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between PTL and their client, which is true of any such business model. This cannot impact upon the right of residents to peaceful enjoyment of their property, nor can it create a contract with any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): http://nebula.wsimg.com/71a4eb1b5de25e5c60b4d5cacfed6b40?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'

I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. PTL cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.


And amend the heading of that overall point (2) to:

2. No valid contract with landowner and no legal standing to pursue the charge nor to make contracts with drivers (no locus standi).


And add this back in to point #4 about 'no pre-estimate of loss' as it was a valid point in your first draft:

According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the driver is a resident and the landowner does not impose a parking charge for the area in question, there is no loss to PTL or the landowner. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''

SMarg

Thank you. Amended as mentioned. There is a part highlighted in bold where I removed the middle part of the sentence but not sure if the rest needs to remain.

APPEAL RE: XXXXXX(PPN) CHARGE ******/******,*********
CAR PARK **/**/2013, VEHICLE REG: **** ***
I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.

1. Neither the parking company or their client has proved that they have planning consent to charge motorists for any alleged contravention.

2. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.

3. The signage at the car park was not compliant with the British Parking Association standards and there was no valid contract between the parking company and the driver.

4. The amount demanded is not a Genuine Pre-estimate of loss.

Here are the detailed appeal points.

I note that the parking company has not been engaged by the landowner, but by a lessee or tenant of the land. 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 and no legal standing to pursue the charge nor to make contracts with drivers (no locus standi).

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. Nor would a witness statement show whether there is a monetary element within the contract which would affect any 'loss' calculations, nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow PTL to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between PTL and their client, which is true of any such business model. This cannot impact upon the right of residents to peaceful enjoyment of their property, nor can it create a contract with any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): http://nebula.wsimg.com/71a4eb1b5de2...&alloworigin=1

In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'

I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable.


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

I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. 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 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 read and accepted the terms, 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

According to the Unfair Terms in Consumer Contract Regulations, 'parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the driver is a resident and the landowner does not impose a parking charge for the area in question, there is no loss to PTL or the landowner. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.


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 flowing 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.

The parking company 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 at the time. Note:- the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and cannot include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.

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 an element of profit included and are not allowed to be imposed by parking companies.

This concludes my appeal.

Coupon-mad

As I said above, Planning Consent won't be relevant to a (not new) block of flats car park - or at least it won't win a POPLA case. So remove point #1 completely and put 'no GPEOL' as point #1 instead.

And the bit at the end of point #3 in bold, should not be in bold.


Looking good now though I think.

spacey2012

I would ask her to speak to her father and ask him to see what the lease says to regards to parking.
It would not be the first time one of these scammers have been trespassing and running a commercial business on land they do not own or have a contract to conduct commerce.

SMarg

I'm not sure how that Planning consent part crept back in as I had taken it out. The part in bold was only because I had removed the middle of the sentence and not sure if rest should remain.

I will see if I can get a view on parking in the lease and will post back if any info.

OK - final (?) version. I have moved the points around to match the top of the letter :

APPEAL RE: XXXXXX(PPN) CHARGE ******/******,*********
CAR PARK **/**/2013, VEHICLE REG: **** ***


I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.

1. The amount demanded is not a Genuine Pre-estimate of loss.

2. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.

3. The signage at the car park was not compliant with the British Parking Association standards and there was no valid contract between the parking company and the driver.


Here are the detailed appeal points.

1. The amount demanded is not a Genuine Pre-estimate of loss

According to the Unfair Terms in Consumer Contract Regulations, 'parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the driver is a resident and the landowner does not impose a parking charge for the area in question, there is no loss to PTL or the landowner. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.

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 flowing 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.

The parking company 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 at the time. Note:- the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and cannot include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.

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 an element of profit included and are not allowed to be imposed by parking companies

2. No valid contract with landowner and no legal standing to pursue the charge nor to make contracts with drivers (no locus standi).

I note that the parking company has not been engaged by the landowner, but by a lessee or tenant of the land. 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.

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. Nor would a witness statement show whether there is a monetary element within the contract which would affect any 'loss' calculations, nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow PTL to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between PTL and their client, which is true of any such business model. This cannot impact upon the right of residents to peaceful enjoyment of their property, nor can it create a contract with any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): http://nebula.wsimg.com/71a4eb1b5de2...&alloworigin=1

In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'

I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable.


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

I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. 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 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 read and accepted the terms, The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

This concludes my appeal.

Coupon-mad

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.

Just remove that bit above (not relevant) and we'll have an other look tomorrow if you can find anything in the leasehold title deeds about the right to peaceful enjoyment and to park a vehicle - seeing as you said the flat is owned by her father.

SMarg

Ok thanks. Will see what we can find out