UKPC Parking Charge..issued in Burnley (but Postcode is Blackburn)

vivvov

Thanks collies carer.. Looking now.. Stoke of luck!

vivvov

Thanks to Newlook and Coupon Mad for the necessary info..and for ColliesCarer for directing me straight to it.....basically the whole thing.........I just added a bit about precendent set by Newlook's win on the exact same carpark.


I'll let you know how it goes when I get the decision.


Car Reg :
Location/time: :
Date of PCN Issue:
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 by UKPC.
I have appealed this PCN directly with PPC who have unfortunately decided to uphold the charge. 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 Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not beset at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."
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, Therefore as the landowner does not impose a parking fee for the area in question, there is no loss to UKPC nor the landowner.
The Office of Fair Trading has stated to the BPA Ltd 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 parking charge does not represent a genuine pre-estimate of loss as no loss would have occurred and therefore is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.
The car par is a free car park and therefore there is no initial loss (e.g. a parking fee outstanding) then there is no loss at all that can be recovered. Therefore, as a POPLA assessor has said previously in adjudication: “In certain situations, such as where the breach involves a failure to pay a tariff, this initial loss will be obvious. However where it is not obvious, it is for the Operator to demonstrate this initial loss when providing its pre-estimate of loss.''
Additionally, considering the alleged 41 minute overstay, I contest that the charge figure of £100 can never be a reasonable or genuine pre-estimate of loss. Given that UKPC charge the same lump sum for a 1 minute overstay as they would for 600+ minutes, and the same fixed charge applies to any alleged contravention (whether serious/damaging, or trifling as in my case), it is clear there has been no regard paid to establishing that this charge is a 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, 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.

All in all it would follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.

Additionally I actually have found information from another appellant, whom was in the same circumstances related to the exact same car park (appellant provides following information: UKPC V Fisher TK MAXX BURNLEY, LANCS, FREE RETAIL PARK, BB11 2DL 09.12.2013) who very recently had their own appeal upheld by a Popla Assessor and set a precedent. The Assessor states:

"... The Appellant has made a number of submissions, however, I will only elaborate on the one submission that I am allowing this appeal on, namely that the parking charge amount is not a genuine pre-estimate of loss.

"As the Appellant has raised the issue of the charge not being a pre-estimate of loss, the onus is on the Operator to prove that it is. The Operator has produced a list of a number of heads that has to be paid for in relation to managing the car park, however they have not given a breakdown of costs to indicate exactly how much each thing costs and I am therefore unable to ascertain whether the parking charge amount is a genuine pre-estimate of loss."

(The above quote was taken from a Popla Assessor, named as Nozir, in the appellant’s correspondence. 10-4-2014 is the stated date given by appellant).

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 & NON-COMPLIANT ANPR WITH NO SIGNAGE ABOUT HOW DATA WILL BE USED.
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

ColliesCarer

If you haven't already sent it - take out the phrase "and set a precedent" and replace it with something like "and my case is the same".
POPLA assessments can't set legal precedents.

If you have already sent it - don't worry it won't cause it to be turned down