Draft POPLA Appeal - any advice?

george321

Helpful forumites, see below for a first draft at my POPLA appeal - any advice greatly appreciated.

Many thanks in advance,

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"Dear POPLA assessor,
I am the registered keeper of the above vehicle and I am appealing against the parking charge sent to me by UK Parking Control Ltd (UKPC). I believe I am not liable for the parking charge on the grounds stated below and I would ask that all points are taken into consideration.
1. Charge not a genuine pre-estimate of loss
2. Unlawful penalty clause
3. No authority to levy charges
4. No contract between driver/inadequate signage

1. Charge not a genuine pre-estimate of loss
The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The UKPC signs state that a PCN would be issued for a “failure to comply” with the terms of parking, which indicates that the parking charge represents damages for a breach of the parking contract.
Accordingly, the parking charge must be a genuine pre-estimate of loss. UKPC has not provided any evidence as to how and why the parking charge is a genuine pre-estimate of loss. Therefore the parking charge is punitive and an unenforceable penalty charge.
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 car park in question is for residents and visitors, with permits available free-of-charge for 2 hours. There is no provision for the purchasing of a ticket or any other means of paying for parking. There was no damage or obstruction caused so there can be no loss arising from the incident. UKPC notices allege “breach of terms and conditions” and, as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event.
UKPC have not explained how the terms and conditions of the car park were breached. The photographs they have provided are not of sufficient quality to prove any breach.
The BPA Code of Practice states:
“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.”
and
“19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.”
I put UKPC to strict proof that that their charge represents a genuine pre-estimate of loss. To date UKPC have refused to provide me with a detailed breakdown of how the amount of the “charge” was calculated in the form of documented, specific evidence applicable to this car park and this alleged incident. I am aware from Court rulings and previous POPLA adjudications that day to day running costs of the business (for example wages, uniforms, signage erection, installation of ANPR cameras, office costs, maintenance costs) would have occurred whether or not a breach had occurred. Therefore these may not be included in this pre-estimate of loss.
The Office of Fair Trading has stated to the BPA 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. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

2. Unlawful penalty clause
Since there was no demonstrable loss/damage yet a breach of contract has been alleged for a free car park, this “charge” can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket, as was found in the case of Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011), in Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).
UKPC could state the letter as an invoice or request for monies, yet they choose to word it as a “Charge Notice” in an attempt for it to be deemed as an official parking fine such as the ones issued by Police and local authorities.
This transparently punitive charge by UKPC is a revenue-raising exercise and is therefore unenforceable in law.
So this is a revenue-raising scheme disguised as a “parking ticket” - in fact it is an unenforceable penalty.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

3. No authority to levy charges
UKPC do not own this car park and are merely agents of the landowner or legal occupier. A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner’s behalf and enforce for breach of contract.
In their notice and rejection letter UKPC have provided me with no evidence that they are lawfully entitled to demand money from a driver or keeper. UKPC must produce evidence to demonstrate that it is the landowner, or a contract that it has the authority of the landowner to issue charge notices at this location. I believe there is no contract with the landowner/occupier that entitles UKPC to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore has no authority to issue charge notices.
I put UKPC to strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that the UKPC produce to POPLA the contemporaneous and unredacted contract between the landowner and UKPC. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between UKPC and the owner/occupier, containing nothing that UKPC can lawfully use in their own name as a mere agent, that could impact on a third party customer.
In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where it states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.
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
I therefore respectfully request that my appeal is upheld and the charge dismissed.

4. No contract between driver/Inadequate signage
Following the receipt of the charge, I have personally visited the site in question. The signage at the entrance of the car park has no lighting and [doesn't have a reflective background], this makes it possible for drivers to enter the car park without seeing the signs thus no contract can be formed between the driver and UKPC. All these reasons make it possible for drivers to enter the car park without seeing the signage upon entering.
Under Appendix B Entrance signs of the BPA Code of Practice it states “Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective.”
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 UKPC is now demanding. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

This concludes my appeal. I respectfully request that my appeal be upheld and the charge be dismissed if UKPC fail to address and provide the necessary evidence as requested in the points highlighted above."