POPLA appeal for parking on a public road

jimmy102

spacey2012 wrote: »

Was your house on this map ?

Yes, it was.

carandbike

jimmy102 wrote: »

One other question related to signage - is it my responsibility to prove that the signs were impossible to read from where I was parked (eg by providing the photos to POPLA that I linked above) or is that UK CPM's responsibility?

I believe the usual thing to do is state that the signage is not compliant to BPA standards and let them prove otherwise. No signage at the entrance to private parking area, no obvious boundary of the same, I believe should also be mentioned.

If it turns out to be your fence, bill them for the outdoor advertising space, say £1000 a year, back dated.

spacey2012

Is it just a google type map or a real planning map.
If so the issue of this land might need sorting, if they have grabbed a bit of your land the house becomes almost unsaleable with a boundary dispute.
separate issue but one that needs addressing along with this cheeky proverbial taking sign nailed to your fence advertising their business.

jimmy102

I've spent hours on this website (thanks all, I hugely appreciate it) and have finally got an appeal for POPLA. See below - any comments appreciated.

I am appealing against 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 (UK Car Park Management, UK CPM) nor their client has proved that they have planning consent to charge motorists for any alleged contravention.

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

3. There was no signage at the entrance of the private parking area, and the signage within the car park was not compliant with the BPA standards. Therefore there was no valid contract between UK CPM and the driver.

4. The amount demanded is not a genuine pre-estimate of loss.


Here are the detailed appeal points.

1. Neither the parking company (UK Car Park Management, UK CPM) nor their client has proved that they have 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 and charges, planning consent is required for this variation. I have no evidence that planning consent was obtained for this change and I require UK CPM to provide 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 also 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 or tenant gives authority for any form of parking restrictions or charges to be brought in.

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

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 UK CPM 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. There was no signage at the entrance of the private parking area, and the signage within the car park was not compliant with the BPA standards. Therefore there was no valid contract between UK CPM and the driver

UK CPM have argued that the vehicle was parked on the access road to the private property, but there are absolutely no markings or signage either on or beside the road to indicate that the location in which the vehicle was parked was either an access road or private property. It is quite clear that there is no clear boundary to the site which UK CPM are attempting to control. The location in which the vehicle was parked was directly outside my house on a public road and there are absolutely no signs or road markings indicating that the road on which the vehicle is parked is either private property or an access road, as UK CPM claim. There are no distinguishing features whatsoever to suggest where the public road ends and the so called ‘access road’ relating to the private parking area begins. The only distinction between the public road and the private property are clearly shown in photographs 4 and 5, which show both by a large sign indicating 'private parking, residents only' and the road clearly changing colour to a red bricked area marked with a line of bricks at the sign. The vehicle was not parked in this private land and was clearly parked on a public road outside my home and not on an access road.

In addition, Section 22.12 of the British Parking Association Code of Practice indicates that ‘a standard form of entrance sign must be placed at the entrance to the parking area’. No such signage exists. Section 22.12 states that an ‘entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.’ No such entrance signs are in place at all, neither on or beside the road or private property concerned. There is no entrance signage by UK CPM indicating that the location in which I was parked was either private property or an access road. The only signage in place to explain any parking restrictions. are within the clearly marked private property area and not at all legible at the location where the vehicle was parked. The only signage relating to the parking restrictions on the private land in question are within the ‘residents only’ car park and such a distance away from the location in which the vehicle was parked so as to be both not visible and impossible to read. The signage in the private parking area was neither conspicuous nor close enough to be read from where the vehicle concerned was parked. It was such a distance away from the road as to be impossible to read at the time of parking or when the vehicle was left, and therefore in direct contradiction to section 18.3 of the relevant terms and conditions.

The site in question is directly adjacent to my home. I believe the signs and any core parking terms that UK CPM are relying upon were too small for any driver to see, read or understand from the position on the road where my vehicle was parked. UK CPM needs to show evidence and a signage map/photos relating to this point, specifically showing the height and size of the signs and where they are in relation to where my vehicle was parked. I believe the signs, which were only within the private car park and not placed at the entrance, failed to properly and clearly 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 UK CPM 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’. UK CPM needs to prove that the driver actually saw, read and accepted the terms, which are impossible to read from where my vehicle was parked. The signage is fundamentally flawed and non compliant with the BPA code of practice. No contract was therefore formed with the driver as there was no consideration, offer nor acceptance of terms.

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 flowiing from a breach of the parking terms. This might be, for example, loss of parking revenue.

This car park is free and there is no provision for the purchasing of a ticket nor any other means for paying for parking. There was no damage nor obstruction caused so there can be no loss arising from the incident. Given that UK CPM charge the same lump sum for a 15 minute overstay as they would for 150 minutes, and the same fixed charge applies to any alleged contravention, it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

UK CPM have 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 UK CPM 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. The charges demanded by UK CPM 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. Equally, as the claim is being made for estimated losses at the time of the alleged contravention, then any costs included by UK CPM that relate to accumulated amounts post that date are obviously invalid. 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.

ampersand

Hello jimmy,
You'll be glad to see this one away: we've all had these apprenticeships:-)
Suggestion - Clause 3,para 2:
You use this twice - 'and there are absolutely no signs or road markings indicating that the road on which the vehicle is parked is either private property or an access road,'...accurate, yes, but why not add a bold 'again', before the 2nd usage. i.e. 'and again there are no....'
More powerful, avoids the baseless slur of ccp blindness:-)

jimmy102

One question on this before I send in the appeal above - is it worth including the photos (posted on the previous page) along with the appeal or is the onus on the parking company to prove the signage was visible? I don't want to damage my case. Any other comments on the above appeal also welcome, thank you.

ampersand

hello jimmy - I'm assuming you're happy without my suggestion above as it's unaltered. That's fine, but I see no need to list your grounds of appeal as well as expanding them.
Your 1st 4 headings add nothing, as your argument body is well laid out in each case subsequently.
re: pics - I'd await old hand advice. Your case is singular. I included pics, but my case for those was blindingly obvious & will form part of counter-claim.
#
Don't forget to follow redx's post 32 and complain to bpa.

Stroma

I would include images if it was me, it won't harm the appeal by adding them. Though popla will just use number 4 - pre estimate of loss to decide this IMO and will allow your appeal

jimmy102

Just to update that I won this case at POPLA today. Huge thanks to everyone in this thread for your help, incredibly grateful.


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.

Stroma

Well done and another no show