OPC Parking Tickets issued at flats - WIN AT POPLA!!

Tramline

IanMSpencer wrote: »

It is the Rainmaker system, regardless of the validity of the claim, you deny, deny, deny. Therefore, they do not actually read the objection, they just have some minimum wage grunt producing letters of rejection.

Indeed Ian, and when I invited the facilities manager at the site to inspect my car based on the photo's he declined saying he sided with OPC! I wonder why....ha!


When I called OPC I did offer to help train their operative how to inspect a windscreen for permit display - they just hung up....

Guys_Dad

OK. Read a bit more thoroughly.

I would use one of the standard winning appeals referred to by c-m, but have as your first point "No Infringement occurred".

Then state you had permit displayed clearly in front windscreen. Refer them to the PPC's photo and include your own photo. In case permit blindness is contagious, put a circle round permit in PPC photo.

Make sure that you highlight "No permit displayed" as cause and then quote your permit number, date of expiry in case photo is not clear enough.

It would be good to see POPLA actually grant appeal on the fact no infringement occurred.

Tramline

Car Reg : xxxxx
Location: : xxxxxx
Date of PCN issue : xxxxxx
PCN Number : xxxxxx

POPLA Verification Code: xxxxx

Dear POPLA Assessor,

I am the registered Keeper of the above vehicle and I'm writing this to appeal a charge sent to me by OPC.

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

• No Infringement occured
• Charge not a genuine pre-estimate of loss
• No loss incurred to landowner
• No contract with driver
• No authority to issue contracts
• Signage

No Infringement Occured
The OPC signs state that permits must be clearly displayed within the front windscreen.

The operator’s photo shows the front windscreen of the vehicle from a distance. The Permit is displayed as per their requirements on the front windscreen. It is located at the top, centre of the windscreen and the Permit is current and valid. (See photo with red circle highlighting permit)


The operator who issued the ticket failed to inspect the windscreen properly as per the operators instructions and incorrectly issued a PPC.


The photo that the registered keeper took, shows the same permit in the same location but close up. The Permit is valid and current. The Permit is displayed and clearly visible as per the operator’s requirements on the front windscreen.


No Breach of Contract And No Genuine Pre-estimate Of Loss

There was no parking charge levied, the car park is “free”. On the date of the claimed loss there was unused capacity, with parking spaces available and there was no physical damage caused. There can have been no loss arising from this incident. Neither can the operator (OPC) lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (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, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by PoPLA itself in adjucation.

I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges of £6.90 for all day parking. This is all the more so for the additional charges which operator states, accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 50% by early payment that it is unreasonable to begin with.

Unlawful Penalty Charge

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

The operator is either charging for losses or it is a penalty/fine.



Contract with the Landowner – Not Compliant with the BPA Code Of Practice and / Or No Legal Status to Offer Parking or Enforce Charges

The operator does not appear to own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, the operator has 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 in question.

I require the operator to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.

Contracts are complicated things, so a witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original showing the points above is the only acceptable items as evidence that a contract exists and authorises The Operator the right, under contract to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.

I say 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.

No Contract with Driver

There is no contract between PCC and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.

Unfair Terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "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" and 5(2) states: "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."

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.”

Unclear, Inadequate and Non-compliant Signage

Due to their barely legible size of the small print, the signs in this car park are very hard to read and I contend that the signs and any core parking terms the operator are relying upon were too small for any driver to see, read or understand.
For example the OPC sign stating reasons why “You will be liable for if you, as the driver or registered keeper of a vehicle:” is written in unfairly small font size in comparison to other wording upon the sign.
I contend 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])

The parking charge is punitive. It does not represent a genuine pre-estimate of liquidated damages, No infringement occured and is therefore an unlawful penalty charge.

I respectfully request that this appeal be allowed.








Do you think the any photo's of the sign's would help my appeal?


....I await any comments and advice to amend my appeal as you see fit.


Thanks again for all your help

nigelbb

Just out of interest why didn't you stick this permit down at the bottom of the windscreen alongside your road tax & what looks like another parking permit? It wouldn't be in your eye line there either.

Tramline

nigelbb wrote: »

Just out of interest why didn't you stick this permit down at the bottom of the windscreen alongside your road tax & what looks like another parking permit? It wouldn't be in your eye line there either.

At a Police road show the advice given was to place such permits higher for visibility... oh the irony ...also they said windscreen wipers could impede the permit if lower down.


Damned if you don't..damned if you do...

Coupon-mad

The points below didn't seem to match the numbered points at the top? So if that's sorted out it will be fine - and yes, attach the 2 pics for POPLA to see the truth.

And do complain to the BPA as well. This is sharp practice - it is not as if they say the permit has to be on the dashboard, they specifically say it has to be ''in the windscreen area'' and you have complied, displayed it there and it is perfectly visible if the parking person had showed any diligence.

Guys_Dad

On the picture you took, make sure you send a non-redacted copy of the permit on your windscreen. Obvious, but easy to overlook in heat of moment.

Tramline

CM - Thank you for checking it over. I will re-check the headings and the correct running order of my appeal and place it once more for final approval - I want to beat OPC and keep the 100% record going.


GD - Good point.... I will send the 'official' Permit picture that reflects the details of my permit for POPLA to see.


Thank you to all those who have given their time to support me through this stressful time.


These parking companies are a disgrace.

Tramline

Car Reg : xxxxx
Location: : xxxxxx
Date of PCN issue : xxxxxx
PCN Number : xxxxxx

POPLA Verification Code: xxxxx

Dear POPLA Assessor,

I am the registered Keeper of the above vehicle and I'm writing this to appeal a charge sent to me by OPC.

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

• No Infringement occured
• No breach of Contract & No genuine pre-estimate of loss
• No loss incurred to landowner
• No contract with driver
• Unlawful penalty charge
• No authority to issue contracts
• Unfair and Unreasonable Terms
• Signage

No Infringement Occurred


The OPC signs state that permits must be clearly displayed within the front windscreen.

The operator’s photo (attached to appeal) shows the front windscreen of the vehicle from a distance. The Permit is displayed as per their requirements on the front windscreen.


It is located at the top, centre of the windscreen (circled in red)and the Permit is current and valid.


The operator who issued the ticket failed to inspect the windscreen properly as per the operators instructions and incorrectly issued a PPC.


The photo that the registered keeper took, shows the same permit in the same location but close up. The Permit is displayed and clearly visible as per the operator’s requirements.


No Breach of Contract and No Genuine Pre-estimate Of Loss

There was no parking charge levied, the car park is “free”. On the date of the claimed loss there was unused capacity, with parking spaces available and there was no physical damage caused. There can have been no loss incurred to the landowner arising from this incident. Neither can the operator (OPC) lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (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, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by PoPLA itself in adjucation.

I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges of £6.90 for all day parking. This is all the more so for the additional charges which operator states, accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 50% by early payment that it is unreasonable to begin with.


No Contract with Driver

There is no contract between OPC and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.

Unlawful Penalty Charge

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

The operator is either charging for losses or it is a penalty/fine.


Contract with the Landowner – Not Compliant with the BPA Code Of Practice and / Or No Legal Status to Offer Parking or Enforce Charges

The operator does not appear to own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, the operator has 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 in question.

I require the operator to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.

Contracts are complicated things, so a witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original showing the points above is the only acceptable items as evidence that a contract exists and authorises The Operator the right, under contract to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.

I say 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.

Unfair Terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "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" and 5(2) states: "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."

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.”

Unclear, Inadequate and Non-compliant Signage

Due to their barely legible size of the small print, the signs in this car park are very hard to read and I contend that the signs and any core parking terms the operator are relying upon were too small for any driver to see, read or understand.
For example the OPC sign stating reasons why “You will be liable for if you, as the driver or registered keeper of a vehicle:” is written in unfairly small font size in comparison to other wording upon the sign.


I contend 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])


The parking charge is punitive. It does not represent a genuine pre-estimate of liquidated damages, No infringement occured and is therefore an unlawful penalty charge.

I respectfully request that this appeal be allowed.


(I will attach the two photographs as before on both my appeals)

***** Finally, should I attach a photo of the OPC Parking sign as the font size used to list reasons for a PPC is so small? ********

Can you please confirm this appeal letter is good enough to be sent?


Thank you

Coupon-mad

That will do the job!