Parking Charge Notice - waiting on double yellows

bov247

Hi guys

I've just been getting myself a bit worked up on all this.

What is there to actually stop ANPR passing the debt on, and then bailiffs just turning up at my door demanding money?

Thanks

Guys_Dad

bov247 wrote: »

Hi guys

I've just been getting myself a bit worked up on all this.

What is there to actually stop ANPR passing the debt on, and then bailiffs just turning up at my door demanding money?

Thanks

They need to win in court first.

Coupon-mad

bov247 wrote: »

Hi guys

I've just been getting myself a bit worked up on all this.

What is there to actually stop ANPR passing the debt on, and then bailiffs just turning up at my door demanding money?

Thanks

The fact that's not what happens with debt collectors?

http://moneyaware.co.uk/2013/06/is-a-debt-collector-the-same-as-a-bailiff-video/

bov247

Just a quick update on this one...I had a response from the BPA on Friday, who are now investigating my complaint! I'll keep you posted as to what happens next.

Thanks for all the help

bov247

Hi everyone!

Here's the latest update...the BPA investigated my complaint. They contacted ANPR Ltd on my behalf, who then subsequently (and immediately!) issued me with the POPLA code.

I've since been out of the country, but am still in good time to meet the POPLA deadline. I've been reading around the forums and have now drafted a POPLA appeal letter. It's based on submissions from Lunaunicorn (which won) and Morning1, but tailored to the individual circumstances here (i.e. a 'charge' for waiting on double-yellow lines).

Please would one of you be able to check this for me before I send it through to POPLA?

Thanks so much for the help.

bov247

Here's the appeal wording:
(The wording on the signs on the road in question actually said "no parking" rather than "no stopping"; is this worth mentioning in the appeal wording?)

I as the registered keeper of vehicle **** *** received a Parking Charge Notice (PCN) from ANPR Ltd, requiring payment of a charge of £100 for the alleged contravention of ‘Waiting or parking in an area that is deemed no stopping’.

The issue date on the invoice is xxx.

As the registered keeper, I would like to appeal this notice on the following grounds:
1. The charge does not represent a genuine pre-estimate of losses and is punitive
2. No contract
3. No authority to levy charges
4. No Creditor identified on the Notice to Keeper
5. Inadequate Signage
6. Unlawful Penalty Charge
7. Flawed contract with landowner/Authority to issue PCNs

1. The charge does not represent a genuine pre-estimate of losses and is punitive

Even if there was a contract (which is denied), the following matters are relevant:

1a. Punitive

The parking charge imposed is punitive and therefore void (i.e. unenforceable). The £100 parking charge is arbitrary and disproportionate to any alleged breach of contract or trespass. This would also apply to any mention of any costs incurred through debt recovery unless it followed a court order. A £100 charge is punitive, contravening the Unfair Contract Terms Act 1997 and is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:
‘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.’

1b. Unfair

The £100 charge imposed is an unfair term (and therefore not binding) under the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations which gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule
‘Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.’

Furthermore, Regulation 5(1) says:
‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer’

And 5(2), which states:
‘A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’

1c. The charge does not represent a genuine pre-estimate of losses

The BPA code of practice states:
“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. If the parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable."

I require ANPR Ltd to provide a detailed breakdown of how the amount of the “charge” was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business (such as the erection of signage, the provision of back office services, the maintenance of ANPR cameras, cost of membership of the BPA etc.) may not be included in this pre-estimate of loss.

The £100 charge is disproportionate to the loss incurred by ANPR Ltd There can have been no loss arising from this incident denying the landowner a loss in earning to the amount of £100. Neither can ANPR Ltd lawfully include their operational day-to-day running costs in any “loss” claimed. I would question that if a charge can be discounted by £50 by early payment that it £100 is unreasonable to begin with.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

2. No contract

There was no contract between the driver and ANPR Ltd. The driver did not see any contractual information on any signs when entering the site and therefore at that time had no idea that any contract or 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. If there was no contract, then at most the driver was guilty of a civil trespass (though this is neither admitted nor denied). If this were the case, the driver may be liable to damages. Given that no ‘damage’ was done to the site, there was in fact no loss at all. The driver has never received a complete version of the terms and conditions of that contract to which ANPR Ltd say the driver agreed to.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

3. No authority to levy charges

A parking management company will need to have the proper legal authorization to contract with the consumer on the landowner’s behalf and enforce for breach of contract. ANPR Ltd 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 ANPR Ltd 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 ANPR Ltd to strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that ANPR Ltd produce to POPLA the contemporaneous and unredacted contract between the landowner and ANPR Ltd. 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 ANPR Ltd and the owner/occupier, containing nothing that ANPR Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

4. No Creditor identified on the Notice to Keeper

Failing to include specific identification as to who “the Creditor” may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to ANPR Ltd there is no specific identification of the Creditor who may, in law, be ANPR Ltd or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that “The Creditor is…” and the Notice does not.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

5. Inadequate Signage

The signage on the road can be impossible for the driver to read from inside the car at a reasonable distance without looking away from the road ahead, regardless of which side of the road the car is. Following the receipt of the charge, I personally visited the site in question, and the signage at this area is inadequate at numerous points on the road for the reason mentioned above.

The BPA Code of Practice at Appendix B sets out strict requirements for signage, including: “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead” and: “There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background”.

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”.

ANPR Ltd needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA Assessor would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount ANPR Ltd is now demanding. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

6. Unlawful Penalty Charge

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, it can only remain a fact that this “charge” is an attempt at extorting an unlawful charge in lieu of 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), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012). The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

7. Flawed contract with landowner/Authority to issue PCNs

APNR Ltd do not own this land and are merely agents of the landowner or legal occupier. In their notice and rejection letters ANPR Ltd have provided me with no evidence that they are lawfully entitled to demand money from a driver or keeper. I put ANPR Ltd to strict proof to POPLA that they have the proper legal authorisation from the landowner to contract with drivers and to enforce charges in their own name as creditor in the courts for breach of contract. I put ANPR Ltd. to produce to POPLA the contemporaneous and unredacted contract between the landowner and the ANPR Ltd.

If ANPR Ltd produce a 'witness statement' in lieu of the contract then I contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms, or, indeed is even an employee of the landowner, or signed it on the date shown. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance.

The BPA code of practice contains the following:
7 Written authorisation of the landowner
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 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.

I therefore respectfully request that my appeal is upheld and the charge dismissed.


Yours faithfully

bov247

And one more thing...ANPR Ltd are no longer used on the land in question!

It's now covered by UK Parking Solutions instead!

Umkomaas

I've skimmed over it and you have all the key points covered, especially GPEOL, No Contract, No Authority, Signage.

As you've copied and pasted from others just have a final read-over to ensure you haven't transferred text that was only relevant to their cases.

Otherwise good to go; Trev won't be able to cope with this!

bov247

Great thanks Umkomaas

I'll let you all know what happens!

bov247

The plot has become more interesting...

To start with, POPLA have processed my appeal (as above), and the hearing will be towards the start of August (I won't mention exact dates on the forum).

Now, I've received a letter from "Expedion Debt Recovery". In this pack there is:

(a) a cover letter saying that ANPR Ltd have instructed them to process the case through Northampton County Court, and have invited me to respond saying why I think they shouldn't proceed.
(b) an example of what ANPR Ltd will say in court.
(c) a "Claim form" (Draft!) for Northampton County Court, with all the details of filled in
(d) a picture of my vehicle from the day the parking charge notice was issued
(e) a copy of the ANPR signage - which incidentally has a different message ("NO STOPPING AT ALL") to the sign shown on the photograph in (d) ("NO PARKING ON YELLOW LINES").

I've a couple of questions please:

1. Do I need to respond to Expedion? I'd imagine this isn't necessary.
2. Should I send a copy of this correspondence to the BPA as an official complaint? This surely is harassment.
3. Should I send the correspondence also to POPLA as a complaint / extra evidence (again citing harassment)?
4. I have photos from the area in question which show that the signage is different. Should I also post these as extra evidence? (I haven't sent any extra evidence so far.)

I'd be happy to PM the correspondence from Expedion if you'd like to see it.

Thanks!