Please could anyone review my POPLA appeal letter?

MUMMYOF4SMALLS

Thanks again for your help. I think I have over complicated things by trying to over research this on various websites and forums! I think I will just start again, copy and tweak the POPLA appeal on here and add a bit about it being a free car park (which I've seen somewhere)...

4consumerrights

Yes - and please make sure you post up here before submitting.


Did the sign really state contractual? - didn't think MET went down that route.

Or was wording included such as failure to comply or contravention or breach?

MUMMYOF4SMALLS

Thanks again all. Just want to get this sent off and done now as its taking up far too much of my valuable time. Have mainly used the POPLA template here and added a few bits. Reading it through again, does it seem a bit lengthy?

@ 4consumerrights ; Looking at the sign (I went back and took photos and noticed more than when I first went in there, so don't know if they've put more up or if I genuinely only saw the one on the other side of the car park stating 90 mins only) it does state comply with terms, sorry, not contractual. I must have not edited the right bit. Here goes......

APPEAL RE: MET Parking Services PARKING CHARGE NOTICE:
CAR PARK: VEHICLE REG:

I am the registered Keeper of the above vehicle and I am appealing against the above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.


1. Neither the parking company nor their client has proved that they have planning consent to charge motorists for any alleged contravention.

2. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.

3. The signage at the car park was not compliant with the British Parking Association standards and there was no valid contract between the parking company and the driver.

4. The amount demanded is not a Genuine Pre-estimate of loss.

Here are the detailed appeal points.

1. No planning consent to charge motorists for any alleged contravention.

Planning consent is required for car parks and have conditions that grant permission as the car park provides a service to the community. To bring in time limits, charges and ANPR cameras, planning consent is required for this variation. I have no evidence that planning consent was obtained for this change and I put the parking company to strict proof to provide evidence that there is planning consent to cover the current parking conditions and chargeable regime in this car park.

"I note that the parking company has not been engaged by the landowner, but by a lessee or tenant of the land. I require proof from the actual landowner that their contract with the lessee/tenant gives authority for any form of parking restrictions or charges to be brought in. (There are VAT implications when a car park is a revenue generating business that may impact upon a landowner and that is why it needs to be established that they need to have granted permission in their lease.")

2. No valid contract with landowner

It is widely known that some contracts between landowner and parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require the parking company to produce a copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.

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 the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company

3. The signage at the car park was not compliant with the BPA standards.

Following receipt of the charge, I have personally visited the site in question. I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply parking for free on this site, where there are no ticket machines to pay for parking, as parking is ‘free’.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility. On the date of the claimed ‘loss’, the MET parking attendant watched the driver walk towards the boundary and made no attempt to warn or stop the driver. He had a legal duty under contract law to mitigate any loss VEHICLE CONTROL SERVICESLIMITED v MR R IBBOTSON and A Retailer v Ms B and Ms K, Oxford County Court. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, had no breach occurred, the cost of parking enforcement would still have been the same. This has been quoted by POPLA itself in adjudication.

4. The amount demanded is not a Genuine Pre-estimate of loss

The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss following from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre.

The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time. Note:- the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and can not include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.

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.
Since there were 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), MET 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.

Equally, as the claim is being made for estimated losses at the time of the alleged contravention, then any costs included by the Operator that relate to accumulated amounts post that date are obviously invalid. In the MET Parking appeal rejection letter they state 'our charge notice represents a claim for liquidated damages and the sum we are seeking to recover has been calculated as a genuine pre-estimate of loss and reflects the anticipated recovery of the direct costs of enforcing adherence to the terms and conditions of parking on the site.’
Should such cost heads be included in the claim, as well as any profit element, then POPLA must reject the charge.
It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.

This concludes my appeal.
Sincerely,
Mr XXXXXX

Redx

the two number 1) `s dont match

MUMMYOF4SMALLS

Good spot! Tired mummyof4smalls and too much time reading on this ridiculous task, thanks have amended (again!)

Redx

please edit post #14 then , and add a carriage return before 2) in order to space it better

if copying from your pc, copy and paste from notepad , not word , to stop formatting issues

MUMMYOF4SMALLS

Done. Spacing is all OK in my word doc. Have just shortened the sub headings too.

MUMMYOF4SMALLS

Oh and one more thing.
Do I need to send any photos with the appeal to show which sign was visible from the space I parked in?

Redx

you only send in photos if they support your case

da_rule

I would suggest not sending any photos as the appeal is worded in such a way that the onus is on them to prove that the signage was compliant.