Help ! Cant find help on your threads. Restricted 2 hrs. Applying to POPLA.

System

Thank you Coupon-mad,

I have followed your good advice up to the ANPR bit, from here I am struggling as we think the ANPR camera was placed on the gate.

Am I searching in the right part of the forum- I am on the POPLA appeals section following stickie advice, however I am struggling to find anything that suits ANPR. Something on P41 and 42 but this doesn't seem to relate. I will carry on looking but just want to be sure I am in the right place.

Probably just looking at it too deeply.

Thanks again for your time.

Coupon-mad

See this person's POPLA appeal (post #33) and then my additions for their ANPR paragraph (post #35) which resulted in a winning POPLA appeal as in post #36:

https://forums.moneysavingexpert.com/discussion/comment/63886484#Comment_63886484

That was one of the links under the NEWBIES thread hyperlink 'How to win at POPLA' - the top example I think - but then again I am more familiar with them than newbies are. You could copy their points 6 and 7 from post #36. And see their update - they won of course!

System

Sorry I sent this to the wrong thread.

Does this look any better or is it too much now?

Thanks for your advice.


PPC address My Address

Date
Car Reg : ……………….
Location/time: : ……………
Date of PCN Issue:
Issue 1- Parking Charge, (date) - Not received/ wrong address .
Issue 2, Notice to Keeper-Owner details provided/ driver details unknown (date).
PCN Number : ……………….

POPLA Verification Code: …………………

Dear Sir/Madam,

I write this letter as the Registered Keeper in order to appeal a Parking Charge Notice (PCN) issued on (date) (letter dated (date), RE: Notice to Keeper) for alleged “breach of advertised terms and conditions within ,,, ….. store at …..Retail Park, ….. St, …. Post code.
I have appealed this PCN directly with PPC who have unfortunately decided to uphold the charge. (Please see enclosed letter dated (date). I therefore appeal to your organisation for careful consideration and objective assessment.
I dispute the PCN on the following grounds:

1. NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS.

2. CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES.

3. UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE.

4. NOTICE TO KEEPER NOT COMPLIANT WITH THE PROTECTION OF FREEDOMS ACT 2012.

5. UNLAWFUL PENALTY CHARGE.

6. UNREASONABLE.


1) NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS.
The parking charge of £100 sought by PPC is a penalty and not a pre-estimate of loss. PPC state in a letter to Keeper (date), “their parking charges are justified on the bases that not only do they amount to a genuine pre-estimate of loss but are likely to amount to liquidation damages” – which can only mean compensation agreed in advance. However the parking charge must be a genuine pre-estimate of loss therefore the parking charge is punitive and an unenforceable penalty charge.
The demand for a payment of £100 has no relationship to the loss suffered by the Landowner. The car park has no parking charge levies; the car park is “free”. In addition, the store closed at 7.30pm and it was a camera that witnessed the driver exiting the car park and not an attendant, as there was no attendant available anywhere on site, therefore there was no physical damage caused and there can’t have been a loss.

2) CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES.
PPC do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Parking Charge Notice to Keeper and in the rejection letter, PPC have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land.
May I also politely request that POPLA check whether PPC have indeed provided a full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier and check that it specifically enables this Operator to pursue parking charges in their own name and through the court system. I suggest that any contract is not compliant with the requirements set out in the BPA Code of Practice.
I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of ‘Private Parking Charges’. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages, they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.

3) UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE.
Due to the high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read and understand, and no notices at all is placed on or positioned near the entrance or exist to the store.

I contend that the signs and any core parking terms PPC are relying upon were too small for any driver to see, read or understand. I challenge that the signs on this land (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]).

In addition, the BPA code of practice contains the following:
''21 Automatic number plate recognition (ANPR)
PPC have failed to show me any evidence that the cameras in the car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and politely ask POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence. Letters ‘RE Notice to Keeper’, ‘FINAL REMINDER’ and ‘Charge Notice’ do not show any image what so ever of the vehicle registration plate actually placed on the vehicle when entering the car park therefore it could be any vehicle. Although the image shown on the letters do clearly show the number plate actually placed on the vehicle when exiting the car park. This lack of clarity raises the question did the incident take place or is there an ANPR error involved?
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''
PPC fail to operate the system in a reasonable, consistent and transparent manner. As PPC do not place enough signs and place signs too high to see on arrival so there is no opportunity for drivers to safely notice signs in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret high-up spy camera, far from 'transparent' and unreasonably collecting data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with actual parking spaces, nor any parking event at all.

4) NOTICE TO KEEPER - NOT PROPERLY GIVEN UNDER POFA 2012

The Notice to Keeper letter I received omits the required information if it were to establish 'keeper liability' under the POFA 2012. PPC have omitted required wording from paragraph 9, Schedule 4, of POFA 2012, namely:
''9(1) 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—
(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;
(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.''
In this case, the Notice to Keeper has not been correctly 'given' under POFA2012 and due to the omission of Part 2 (ii), (ii), (g) is nullity as the driver has not been identified for this parking event, PPC do not have the right party for their alleged 'contract/breach' since they have failed to establish keeper liability.
Also it omits (g) inform the keeper of any discount offered for prompt payment Please see the enclosed letter ‘RE: Notice to Keeper ‘date) and the ‘FINAL REMINDER’ (date)’ where at no point did PPC inform the registered keeper of any discount for prompt payment in either of its ‘ Notice to Keeper’ or ‘FINAL REMINDER’- the latter I can only presume is meant for the registered keeper as it does not state the title ‘RE Notice to Keeper FINAL REMINDER’
Please see reply/appeal letter to PPC (date), in response to ‘PPC ‘RE: Notice to Keeper (date)’. This letter informs how the registered keeper could not assist in providing ‘driver details’ but keeper did provide ‘owner details,’ to assist PPC in identifying the driver, however PPC did not even attempt to contact the owner to try and gain driver details but pursued the registered keeper instead.

5) UNREASONABLE

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”


SUMMARY

On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP, POFA 2012 and also fails to comply with basic contract law.

Yours Faithfully

Mr/Mrs……………………………………………………..

Coupon-mad

Yep. Maybe change the heading:


3) UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE.


to


3) UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE & NON-COMPLIANT ANPR WITH NO SIGNAGE ABOUT HOW DATA WILL BE USED.

vivvov

I must thank netbook as I'm in the same tm maxx boat. . And I must apologise because I fAt fingered "spam" due to doing this reply on my mobile.
Many thanks plus apols
Vivvov

vivvov

Newlook not netbook.. Must get a better bigger phone