CPM Fleet Waterfront Business Park

ktm1974

Surprise surprise my first appeal has been rejected. Here's the response back from UK CPM, thought some might be interested.

flickr.com/photos/37539164@N02/sets/72157645187618277/

In the meantime I shall draft an appeal for POPLA and post on here shortly for review with the following points for appeal,
1) No Genuine Pre Estimate of Loss
2) Inadequate Signage (flashed used in the photo on rejection letter!)
3) Contract with Landowner
4) Non compliant Notice to Keeper

Is there anything else I should consider including?

Thanks again all for your invaluable help!

Umkomaas

Breach, breach, contravention, a long list of business running costs......

https://www.flickr.com/photos/37539164@N02/sets/72157645187618277/

Handed to you on a GPEOL plate. Find a POPLA appeal template as close as possible to your own situation (do a check to see if there's a UKCPM POPLA appeal linked), amend as necessary, flash it up here for forum critique and a POPLA win is awaiting!

All in the NEWBIES sticky, post #3 'How to win at POPLA'.

HTH

Coupon-mad

Quelle surprise! We knew in March they couldn't be consistent:

Coupon-mad wrote: »

So when you do get the NTK I expect it will talk about 'breach of contract' which isn't a contractual fee!

Don't know about the NTK but the rejection letter clearly gives the game away about 'breach' being the allegation as I suspected.

You can adapt this UKCPM POPLA appeal which was similar in many respects:

https://forums.moneysavingexpert.com/discussion/4929938

Make sure you point out to the Assessor that the allegation is clearly one of breach of contract, as stated in the NTK (if it is!) and the rejection letter too, and so they must demonstrate the whole charge is a genuine pre-estimate of loss.

And they won't!

HTH

The_Deep

Another badly written sign.

TERMS OF PARKING WITHOUT PERMISSION
You do so at your own risk.

It follows therefore that, if you have such permission, and the car is damaged or stolen, the PPC will compensate you. Someone should test this out.

ktm1974

As always thanks for your replies and suggestions!!!
I've used the letter from the link Coupon-mad suggested and have tailored it to suit. In addition to the letter I was going to supply both day time and night time photos of the entrance and the sign from where the car was parked. Is this needed?

Dear POPLA Assessor

I wish to appeal PCN xxxxx issued to me by UK Car Park Management (hereinafter referred to as CPM)

My appeal against the PCN is based on the following grounds:

1. Signage was not compliant with BPA AOS Code of Practice

The following clauses of the Code deal with signage:

18.2 entrance signs, located at the entrance to the car park, must tell drivers that the car park is managed and that there are terms and conditions which they must be aware of. Entrance signs must meet minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and follow Department for Transport guidance. Industry-accepted sign designs and guidance on how to use the signs are in Appendix B.
18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking
terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are.
Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and
conditions must be at least 450mm x 450mm

Appendix B sets out requirements for entrance signs and adds some clarification on the words “conspicuous and legible” and “easy to see”. The following extracts are relevant:

As well as the AOS logo, signs at the entrance to the parking area must clearly show the type of parking, and when and how any payment should be made. Whilst we consider it to be good practice that the landowner’s name is placed on the sign, we
understand that in some instances the owner may not wish to be mentioned.
If one of the following standard wordings applies you should use it. If not, you may alter the wording to fit the situation. Words in square brackets may be left out. There must be at least one item from Group 1, and no more than three which should appear
before and more prominently than text from Group 2.
If there are different payment requirements for blue badge holders, these should also be shown. The words ‘blue badge holders’ should generally be replaced by the blue badge symbol (exactly as shown in Traffic Signs Regulations guidance Document, not a local version).
Group 1
Pay and display [except/free for blue badge holders]
[x minutes/hours] free parking [for customers only]
Pay on exit
Pay [on foot/at machine] when leaving
Parking for customers
Group 2
Charges apply [after this]
Private land
See the notice [ in car park] for conditions
The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead. Any text on the sign not intended to be read from a moving vehicle should be of a much smaller size.

a). There is no entrance sign to the land and thus no warning that a driver is entering a managed parking area. A driver cannot therefore be expected to look for other signs, especially in the dark. CPM has stated in their rejection letter that “the signage within the restricted area is a clear and prominent and does comply with the BPA code of practice.” I challenge CPM to provide photographic evidence of the existence of an entrance sign – please see photo 1 on the attachment below showing the entrance to the land which shows clearly the lack of any entrance sign.

b). None of the signage in the area is lit at night. CPM in their rejection letter have not disputed this point. Furthermore none of the “specific parking-terms“ signs are visible in the driver’s eye line at night using dipped or full beam headlights. The first sign was so high and dark that there was no chance a driver arriving would see them, let alone be able to read them at any distance. If you view CPM’s images, they also show how dark the area is – and please note that the parking sign they show has had to be photographed with flash and is not viewable from where I had stopped.
CPM in their rejection letter have stated: “It is the driver’s responsibility to ensure that parking is permitted prior to doing so at all times and that any signage is noted and adhered to before stopping the vehicle or leaving unattended”.
This statement is irrelevant if there is no entrance sign, and ignores the requirement for signage to be lit. Given the circumstances of darkness, no entrance sign, no lit signs, I would conversely suggest it would be most improbable that anyone would see any of their signs. The onus is on CPM to prove that the driver saw, read and accepted the terms of their extortionate “contract”.

In summary the signage at the site fails to meet the requirements for signage in the BPA Code of Practice section 18 and Appendix B, and I also argue that CPM fail to have established beyond doubt that the driver saw any signs at all when parking. Accordingly I request POPLA to uphold my appeal against the PCN.

2. The Parking Charge is unreasonable

This is the relevant section from the BPA AOS Code of Practice:

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. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. If it is more than the recommended amount in 19.5 and is not justified in advance, it could lead to an investigation by The Office of Fair Trading

a). No contract exists. I discuss in b). below whether 19.5 or 19.6 applies in this case, but I must firstly state that there was no contract between the driver and CPM. The driver did not see any contractual information on any signs when entering the car park and stopping, and therefore at that time they had no idea that any restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied. There can thus be no breach of contract and no “contractually agreed sum”.

b). Penalty for breach of contract or contractually agreed fee? The position of CPM is unclear on whether their charge is for breach of contract or a contractually agreed sum. Their rejection letter states that “a breach of the Terms and Conditions of parking occurred” ie a breach of contract, but it also states: “The parking charge forms part of a contract and the terms state that you agree to pay the parking charge fee of £100 if the required restrictions are not met. The parking charge fee is not a pre-estimate of loss to the land-owner.” Their signs state that “Unauthorised parking may result in your vehicle receiving a parking charge notice.”, “Terms of parking without permission - … you are agreeing to pay a parking charge fee”, and “The following fees apply”.
Thus the rejection letter relies on a breach of contract, but the signage and rejection letter also want to treat this as a contractually agreed amount, i.e. a fee. CPM can not have it both ways.
If the charge is really a fee for services provided rather than damages, such payments are I believe subject to VAT (Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]), but I have received no VAT invoice from CPM nor is there any reference to VAT in their signage or rejection letter. I require them to demonstrate by providing substantive evidence to POPLA that they account to HMRC for the VAT element on these sums. If CPM are unable to do so, then the parking charge cannot be deemed “a contractually agreed sum” or “fee” but must be treated as “damages for breach of contract or act of trespass”. This interpretation has added value if one considers that a contract requires minimally an offer, acceptance and consideration, but in this case there is clearly no offer of parking (as the signs refer to “unauthorised parking” and “parking without permission”) – i.e. a prohibition on parking. In essence the driver has unwittingly committed an act of trespass for a brief period of time from which no loss has arisen.

c). The charge is punitive and unreasonable. If the charge is deemed to be a contractually agreed sum, then the BPA state that it cannot be punitive or unreasonable. CPM have chosen the maximum sum stipulated by the BPA with no consideration as to what is reasonable, and I therefore challenge CPM to prove that the fee is not punitive and unreasonable. The Unfair Terms Consumer Contracts Regulations 1999 are relevant, in particular Regulations 5(1) and 5(2).

d). The charge is not a genuine pre-estimate of loss. If the charge is deemed to be damages for breach of contract or act of trespass, I argue that the charge is not a genuine pre-estimate of loss to the landowner. I challenge CPM to provide evidence of the loss incurred, in the knowledge that CPM may only include losses consequential to the breach of parking terms and conditions and must exclude any of their costs of running the business.

3. No authority to enforce charges

This is the relevant section of the BPA AOS Code of Practice:
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed
agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.

CPM do not own the land on which the driver stopped and presumably act as agent for the landowner. I assume that CPM have an agreement with the landowner covering their management of the land where the driver parked, but I question whether it gives CPM the authority to issue PCNs and to pursue third parties for parking charges through the courts. I therefore require strict proof that CPM have the proper legal authorisation from the landowner to contract with drivers and enforce charges in their own name in the courts, by providing POPLA with a full and complete copy of the current signed agreement with the landowner, in an unredacted state.

4. Breaches of BPA AOS Code of Practice

Section 13 of the BPA AOS Code of Practice deals with grace periods:
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.

CPM have blatantly disregarded this requirement which is evident from the timestamps of their supplied photographic evidence. Nevertheless CPM is guilty of material breaches as demonstrated in points 1 and 4 above, and there may be others evident when CPM’s evidence is presented.

Conclusion

Based on the foregoing, I request POPLA to uphold my appeal against the PCN issued by CPM. I understand that I should receive the evidence pack from POPLA or CPM at least 7 days before the Appeal is heard, and that I will be given the opportunity to comment on the evidence provided by CPM prior to the hearing.

Yours faithfully

xxxxxxxx

NB Please also see the Attachment containing photographic evidence which forms an integral part of this Appeal

Photo 1 - Entrance to Waterfront Business Park day time
Photo 2 – Night time
Photo 3 - Picture of sign from where the car was parked day time
Photo 4 - Night time

Coupon-mad

In addition to the letter I was going to supply both day time and night time photos of the entrance and the sign from where the car was parked. Is this needed?

Not 'needed' but they won't hurt, as long as you say 'the driver parked in the dark' so it's clear. This bit is written confusingly at the bottom and suggests it was parked in daylight, so change the words! as this isn't what you mean:

'Photo 3 - Picture of sign from where the car was parked day time'


I think point #2 should be:

2. The Parking Charge is neither a genuine fee to park nor a genuine pre-estimate of loss.

Dee140157

mr Spock, I haven't read this yet. You have posted it on someone else's thread instead of your own. Please post on your own thread so we can keep the information all together and delete this post (edit, delete, delete)

ktm1974

And so we have it, another successful appeal!!!

Reasons for the Assessor's Determination

It is the Appellant's case that the parking charge notice was issued incorrectly.
The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.
Accordingly I have no option but to allow the appeal.

Thanks to all that have helped, and hopefully this thread can help others in the future.

Redx

so another PSDSU

well done, please post the ppc, decision and assessor in here for posterity , linking it back to this thread too, in case it helps others do the same

https://forums.moneysavingexpert.com/discussion/4488337

once again , well done

ps:- still amazes me that they spend all this time giving out bluster about how these PPC cases are watertight and conform to business practices and the BPA etc, then when it comes to proving their case to a popla assessor they go off piste

6 to 7 months of putting these people through angst etc, all for nothing

Stroma

Make a complaint now to the bpa about this company trying to penalise you, they have failed to prove their losses so have breached the bpa cop by only ticketing for genuine losses. They will probably ignore you but it's only one more email