UKPC private residents car park fine

Jlats

Good evening, after reading lots of posts and different threads I'm unable to find a situation similar to mine. Would appreciate any advice on the below:

Visited a friend at their apartment building
Did not want to park in a residents bay so parked on a curb on the way into the car park
When I returned to the car I had a ticket for "parking outside of the designated residents bays"
There were no road markings, only signs advising residents to park in their designated bays. I am not a resident and there are no visitor bays.
Furthermore the registration number is incorrect on the ticket.

I have already appealed the initial ticket (annoyingly before reading anything on here) and now have a letter rejecting the appeal and advising to either pay £60, appeal to POPLA within 28 days or do nothing and the fine will increase to £100.

Any advice much appreciated.
J

Redx

plenty of similar threads on here

start with this one https://forums.moneysavingexpert.com/discussion/4816822

Coupon-mad

Simply follow the post #3 hyperlink in that sticky thread, the link called: 'How to win at POPLA'. By all means show us your draft appeal based on our winning versions - it is more about the contract law stuff than about 'what happened' (the latter would LOSE at POPLA). It's a shame you appealed as a wrong number plate on the PCN would have meant they would either: have never written to follow it up, or if they had you could have appealed as keeper (not saying who was driving) and pointed out that the Notice to keeper (which would have been the first letter if you had not appealed) didn't match the PCN. There would have been no keeper liability at all under POFA2012 due to the PCN flaw.

Never mind - we win 100% of POPLA appeals anyway based on 'no GPEOL' and other acronyms & info explained in the NEWBIES sticky thread.

ezerscrooge

Here's POPLA appeal for starters...

[FONT=&quot]Car Reg : xxxxx[/FONT]
[FONT=&quot]Location: : xxxxxx[/FONT]
[FONT=&quot]Date of PCN issue : xxxxxx [/FONT]
[FONT=&quot]PCN Number : xxxxxx[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]POPLA Verification Code: xxxxx[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Dear POPLA Assessor,[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I am the registered Keeper of the above vehicle and I'm writing this to appeal a charge sent to me by YYY[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I would like to appeal this notice on the following grounds: [/FONT]
[FONT=&quot] [/FONT]

• [FONT=&quot]Charge not a genuine pre-estimate of loss[/FONT]
• [FONT=&quot]Unlawful penalty clause[/FONT]
• [FONT=&quot]No authority to levy charges[/FONT]
• [FONT=&quot]Business Rates & Business Legitimacy[/FONT]

[FONT=&quot]

[/FONT]
[FONT=&quot]1. [/FONT][FONT=&quot]Charge not a genuine pre-estimate of loss[/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The YYY signs states that a PCN would be issued for a “failure to comply” with the terms of parking, which indicates that the parking charge represents damages for a breach of the parking contract. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Accordingly, the parking charge must be a genuine pre-estimate of loss. YYY has not provided any evidence as to how and why the parking charge is a genuine pre-estimate of loss. Therefore the parking charge is punitive and an unenforceable penalty charge. [/FONT]
[FONT=&quot]
The BPA Code of Practice states:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.“[/FONT]
[FONT=&quot]and [/FONT]
[FONT=&quot]“19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. “[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I put YYY to strict proof that that their charge represents a genuine pre-estimate of loss. To date YYY have refused to provide me with a detailed breakdown of how the amount of the “charge” was calculated in the form of documented, specific evidence applicable to this car park and this alleged incident. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business 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 in this pre-estimate of loss.[/FONT]

[FONT=&quot]I therefore respectfully request that my appeal is upheld and the charge dismissed.[/FONT][FONT=&quot]

[/FONT]
[FONT=&quot]2. [/FONT][FONT=&quot]Unlawful penalty clause - revenue for YYY[/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket, as was found in the case of Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011), in Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).[/FONT]

[FONT=&quot]This transparently punitive charge by YYY is a revenue-raising exercise and is therefore unenforceable in law. YYY's own website is damning in this regard. [/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]So this is (as is proven by the Operator's own website) a revenue-raising scheme disguised as a 'parking ticket' - so in fact it is an unenforceable penalty.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I therefore respectfully request that my appeal is upheld and the charge dismissed.[/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]3. [/FONT][FONT=&quot]No authority to levy charges[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner’s behalf and enforce for breach of contract.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]YYY must produce evidence to demonstrate that it is the landowner, or a contract that it has the authority of the landowner to issue charge notices at this location. I believe there is no contract with the landowner/occupier that entitles YYY to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore has no authority to issue charge notices.[/FONT]
[FONT=&quot]
I put YYY to strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that the YYY produce to POPLA the contemporaneous and unredacted contract between the landowner and YYY. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between YYY and the owner/occupier, containing nothing that YYY can lawfully use in their own name as a mere agent, that could impact on a third party customer. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]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[/FONT]
[FONT=&quot]
I therefore respectfully request that my appeal is upheld and the charge dismissed.

[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]4. Business Rates & Business Legitimacy[/FONT][FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]As this car park is now being used for the purpose of running a business by YYY, which is entirely separate from any other businesses the car park services, and generates revenue and profit for YYY, I do not believe that YYY has the necessary planning permission or have declared the running of their business venture at this location to the Local Valuation Office and Local Authority for the purpose of the payment of Business Rates.[/FONT]
[FONT=&quot]
I put YYY to strict proof that the necessary planning permission is in place, and that they have registered the business they are operating at xxxxxxxxxx with the Valuation Office and to provide proof that Business Rates are being paid to the Local Authority, or to provide proof or explanation of their exemption from such Business Rates. Failure to do so indicates that they are not operating a legitimate business from the premises.[/FONT]

[FONT=&quot]I therefore respectfully request that my appeal is upheld and the charge dismissed.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]This concludes my appeal.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Kind regards[/FONT]

wiogs

Do also remember that it isnt a fine.

Jlats

Thanks so much for the advice and the draft POPLA letter. I'm in the process of putting my own letter together and will then post it for you guys to review. Should I post on this thread or another?
Thanks again.

Hot_Bring

This one please - it keeps all your stuff in the same place.

Jlats

Ok, here's my draft, largely based on the one kindly posted here earlier and also including a point about the signage. As this is a private residents car park (and I was a visitor) I wonder if there is anything else I should include or change? Any advice much appreciated before I send this to POPLA.


Dear POPLA Assessor,

I am the registered Keeper of the above vehicle and I'm writing this to appeala charge sent to me by UKPC

I would like to appeal this notice on the following grounds:

1. Charge not a genuine pre-estimate of loss
2. Unlawful penalty clause
3. No authority to levy charges
4. Business Rates & Business Legitimacy
5. Signage does not comply with BPA code of practice

1. Charge not a genuinepre-estimate of loss

The demand for a payment of £100 is punitive, unreasonable, exceeds anappropriate amount, and has no relationship to the loss that would have beensuffered by the Landowner. The UKPCsigns states that a PCN would be issued for a “failure to comply” with theterms of parking, which indicates that the parking charge represents damagesfor a breach of the parking contract.

Accordingly, the parking charge must be a genuine pre-estimate of loss. UKPC has not provided any evidence asto how and why the parking charge is a genuine pre-estimate of loss. Thereforethe parking charge is punitive and an unenforceable penalty charge.

The BPA Code of Practice states:

“19.5 If the parking charge that the driver is being asked to pay is for abreach of contract or act of trespass, this charge must be based on the genuinepre-estimate of loss that you suffer.“
and
“19.6 If your parking charge is based upon a contractually agreed sum, thatcharge cannot be punitive or unreasonable. “

To date UKPC have not provide me witha detailed breakdown of how the amount of the “charge” was calculated in theform of documented, specific evidence applicable to this car park and thisalleged incident. I am aware from Courtrulings and previous POPLA adjudications that the cost of running the business,for example, were no breach to have occurred then the cost of parkingenforcement (for example, erecting signage, wages, uniforms, office costs)would still have been the same and, therefore, may not be included in thispre-estimate of loss.

I therefore respectfully request that my appeal is upheld and the chargedismissed.


2. Unlawful penalty clause - revenue for UKPC

Since there was no demonstrable loss/damage and yet a breach of contract hasbeen alleged, this 'charge' can only be an unlawful attempt at dressing up apenalty to impersonate a parking ticket, as was found in the case of ExcelParking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow(review, February 2011), in Parking Eye v Smith (Manchester County CourtDecember 2011) and UKCPS v Murphy (April 2012).

This transparently punitive charge by UKPCis a revenue-raising exercise and is therefore unenforceable in law. UKPC's own website is damning in thisregard. So this is (as is proven by theOperator's own website) a revenue-raising scheme disguised as a 'parkingticket' - so in fact it is an unenforceable penalty.

I therefore respectfully request that my appeal is upheld and the chargedismissed.


3. No authority to levy charges

A parking management company will need to have the proper legal authorisationto contract with the consumer on the landowner’s behalf and enforce for breachof contract. UKPC must produce evidence to demonstrate that it is the landowner,or a contract that it has the authority of the landowner to issue chargenotices at this location. I believe there is no contract with thelandowner/occupier that entitles UKPCto levy these charges and to pursue these charges in their own name as creditorin the Courts and therefore has no authority to issue charge notices.

I request that UKPC produce to POPLAthe contemporaneous and unredacted contract between the landowner and UKPC. Even if a basic contract is produced andmentions PCNs, the lack of ownership or assignment of title or interest in theland reduces any contract to one that exists simply on an agency basis between UKPC and the owner/occupier, containingnothing that UKPC can lawfully usein their own name as a mere agent, that could impact on a third party customer.

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 allegedsignatory 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 issubmitted, that it is accompanied by a letter, on landowner’s headed notepaper,and signed by a director or equivalent of the landowner, confirming that thesignatory is, indeed, authorised to act on behalf of the landowner, has readand the relevant terms of the contract and is qualified to attest to the fulllimit of authority of the parking company

I therefore respectfully request that my appeal is upheld and the chargedismissed.


4. Business Rates & Business Legitimacy

As this car park is now being used for the purpose of running a business by UKPC, which is entirely separate fromany other businesses the car park services, and generates revenue and profitfor UKPC, I do not believe that UKPC has the necessary planningpermission or have declared the running of their business venture at thislocation to the Local Valuation Office and Local Authority for the purpose ofthe payment of Business Rates.

I put UKPC to strict proof thatthe necessary planning permission is in place, and that they have registeredthe business they are operating at RH Nineteen with the Valuation Office and toprovide proof that Business Rates are being paid to the Local Authority, or toprovide proof or explanation of their exemption from such Business Rates.Failure to do so indicates that they are not operating a legitimate businessfrom the premises.



5. Signage does notcomply with BPA code of practice



Dueto their position, colour of font and the barely legible size of the small print,the signs in this car park are very hard to read. I contend that the signs and any core parkingterms that UKPC are relying uponwere too small for the driver to discern when driving in and that the signsaround the car park also fail to comply with the BPA Code of Practice. I require signage evidence in the form of asite map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, positionand clarity) fail to properly inform the driver of the terms and anyconsequences for breach, as in the case of Excel Parking Services Ltd v MartinCutts, 2011. As such, the signs were notso prominent that they 'must' have been seen by the driver - who would neverhave agreed to pay £100 in a free car park - and therefore I contend theelements of a contract were conspicuous by their absence.


I therefore respectfully request that my appeal is upheld and thecharge dismissed.

This concludes my appeal.

Kind regards

Hot_Bring

I've scan read it and it looks good apart from some lack of spaces ( probably a cut and paste issue ) and you can get rid of point 4. Whether UKPC pay the correct rates / taxes is utterly irrelevant to the lack of legitimacy of their charge.

Jlats

Ok great, thanks. I'll remove point 4. Anything else to add? And yes copy and paste has messed up the layout a little!

Hot_Bring

Nothing else to add - you've got the key winning points. Send it to POPLA and await a win.