Help with wording on POPLA form

ColliesCarer

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https://dl.dropboxusercontent.com/u/107678301/unsuccessful%20appeal.jpg

https://dl.dropboxusercontent.com/u/107678301/Sign.jpg

https://dl.dropboxusercontent.com/u/107678301/Sign%202.jpg

https://dl.dropboxusercontent.com/u/107678301/Entrance%201.jpg

https://dl.dropboxusercontent.com/u/107678301/Entrance%201.jpg

Coupon-mad

Try this which is adapted from one I wrote a few weeks ago for a CPM ticket:




POPLA CODE XXXXXXXXXX

This is my appeal as the person who was the driver/keeper of the van at the time of the parking event:

1. Signs - no contract with Driver
See photos - it was dark & no signs were visible as they are unlit. There was no agreement to pay anything to park. No consideration/acceptance flowed - so no contract exists. I believe this was self-ticketing I require proof that the ticketer was trained in the BPA CoP (they must have signed to prove this for BPA inspection purposes) & an explanation of why no grace period was allowed and no signs were lit on site. In a site with unclear signs, the BPA CoP does not allow ticketing.

The letter CPM sent back stating why my appeal failed, stated the PCN was for: 'Vehicle not parked in a designated area' and they claimed that the signage states "No parking outside of a designated area/parking bay". This is not the case. Indeed the letter confirms that parking is NOT 'allowed' under such circumstances and it is clear that the predominant aim is in fact to deter 'breach of terms of parking' (their words on the rejection letter which blows the 'contractual fee' lie out of the water).

Their last point is: 'We appreciate your circumstances however, in order for the vehicle to be considered loading/unloading, you must show clear signs of this happening e.g. hazard lights on to show the vehicle is not parked.' I put CPM to strict proof of where their signage states this 'hazard lights' rule, bearing in mind this is not accepted practice on street under Council and normal Highway Code rules. There is no such requirement when loading/unloading on street or on private land. Signage must be clear if unloading is to be penalised and if hazard lights have to be on, and if loading is restricted to a certain time period. I require CPM to explain how their operation deals with the matter of residents wishing to move into or out of the block of flats and unload which is what the van was there for, and how this is communicated to consumers in a fair and transparent way. There were also no yellow lines, no hashings to indicate any areas not 'designated' and nothing about loading/unloading.

A term is only imported into a contract if it is clear regarding what must be paid under what circumstances (this signage is not and it tries to mislead by the use of the 'contractual fee' wording). Further, signs must be so prominent, including in the hours of darkness, that the party 'must' have known of it & agreed. These signs have failed to create a contract and in their rejection letter, CPM have added made up rules about loading which are not in the signage wording and therefore cannot be imported into any contract. Terms must be clear otherwise the interpretation that favours the consumer applies under the doctrine of contra proferentum. The terms here were not clear at all about loading/unloading and the signs were dark and unreadable at night.

2) No Locus Standi
This is a site agreement at best, a bare licence limited to 'issuing tickets'. There is no assignment of legal rights to pursue PCNs in the courts in their own name nor to form contracts. CPM have no standing to form contracts with a driver or pursue charges in the courts. I put CPM to strict proof of their signed/dated landowner contract and all the terms in it. The contract must state that CPM can pursue drivers via court and show all requirements of 7.1 and 7.2 of the BPA CoP (without which there is no authority according to BPA rules). This needs to be a full copy and not a basic 'site agreement' template sheet or redacted contract.

If the client is a managing agent (another third party, not the site owner) I require proof that the actual landholder authorises this parking operation at this site, issuing tickets for this specific reason and amount and duly assigning CPM the standing to make contracts with drivers and pursue charges in the courts in their own name. NB: I am not merely challenging the right to 'issue PCNs' (anyone can issue a misleading piece of paper on a windscreen, even a resident - and this is not the point made). I put UKCPM to strict proof of their standing.

3) Not a true contractual fee - 'unauthorised' = breach. No GPEOL
Although the operator states that the sum sought is a contractual term, this is not the case. You cannot pay a sum in the nature of a service 'fee' in order to do something that is specifically disallowed. On the PCN the sum is stated as a 'contravention' for 'breaching the terms' yet the (unlit) sign misleadingly alleges a 'contractual' sum. If so, there would be a payment mechanism & a VAT invoice and the sign would have had to have been worded to allow all manner of parking, at a cost. This is not the case here.

In fact, the predominant aim of the signs is to deter unauthorised parking - the wording states ‘unauthorised parking may result in your vehicle receiving a PCN'. It is clear from this that breaching the specific conditions stated may result in a parking charge notice and therefore it appears that the amount sought is for those that are parked in breach. This amount would appear to represent liquidated damages which is compensation agreed in advance.

UKCPM must show it is a genuine pre-estimate of loss & I contend there was no loss.

4) Unfair terms - Unenforceable Disguised Penalty
This is not a transparent contract and is a disguised penalty so it is not recoverable in law:

The Office of Fair Trading guidelines re the UTCCRs 1999:
Group 18(a): unfair financial burdens
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances. A term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.

Akumo

Hi Couponmad

I did not have the time to post yesterday but thank you very much with the POPLA wording you have provided there are enough variations between that and the standard forms for me to have made quite a number of errors.
The first post I made here omitted a few things that may or may not be important, this was probably due to me being annoyed/angry at the letter received from CPM refusing my appeal and because of this I was not thinking in such a coherent manner.
These points are:
a) Every flat has a parking space allocated, the parking spaces are numbered. Some of the flats I believe though do share spaces.
b) Permits were handed out a few months after we moved in as non residence were using the free parking.
c) Each permit is numbered with the corresponding parking bay
d) Within the past few months a couple of businesses have opened up on the ground floor, one of which is an education centre with parents regularly dropping off and picking their children up, where do they stop to do this? In the exact same place where I have parked!

Does the fact of being a tenant in the block of flats have any impact on the wording?
I have checked the terms of the tenancy agreement with the HA and there is no mention of parking other than being verbally told when we moved in the number of the parking bay that was allocated to us.

I take it that if someone without a permit had parked in a bay without authority from the tenenant then this would fall under the law of trespass, and ought to be paid as the person whos bay it is may well have been severly inconvenienced, and this would not be to dissimilar to the scenario of parking in a nurses/DR's spot at a hospital, (cant find the thread about this at the moment). It was for this reason that I did not park in anyone else's bay.

With regards to the rejection of appeal letter that I received from CPM it did not state that there was any contract between the driver and themselves, so is the wording on the signs irrelevant if they have not mentioned any contract being in place in the rejection letter?

I'd like to add that how you have worded the response regarding the use of hazard warnming lights is excellenet, I had thought about this and came to the conclusion that unless CPM have a process or precedure written down and visible in the car park specifically for un/loading then there statement is at best hypothetical but was unsure how to include it in any appeal.

Lastly I just realised that I double posted one of the links to the entrance, apologies for this below is a link to the other picture I took.

dl.dropboxusercontent.com/u/107678301/Entrance%202.jpg
Once again it is missing the https:// at the start.

Once again thank you for your help and best regards.

Akumo

Guys_Dad

You need to refocus.

Technically you broke the so-called parking conditions. In doing so, you gave the PPC the opportunity to "earn" some money. If no one broke the t&c, they make no money. So they refuse your reasonable appeal.

You have a mitigating excuse. POPLA don't do mitigation, so forget those details. In fact, no need to make ANY reference to the whys and wherefores in your POPLA appeal.

You go with a standard 4 point template appeal majoring on GPEOL. Job done.

You could try your luck with the management company in parallel as well,

Akumo

Hi Guys dad

Thanks for the response, just a quick question, technically speaking then no one can un/load to move into or out of the flats from that location?

Regards

Akumo

Coupon-mad

Yes they certainly can park and do whatever they like - it just means they will collect a fake PCN every time unless they leave their stupid hazard lights on, it seems! I would separately complain to the managing agents about that. Also mention in your complaint that (as you said) 'a couple of businesses have opened up on the ground floor, one of which is an education centre with parents regularly dropping off and picking their children up, where do they stop to do this?' BUT don't write 'where I parked' even in a complaint, obviously it's 'where the driver parked'!

Obviously you will need to check the appeal I wrote for accuracy - it is up to you to check - is everything I have written correct and applicable to your case? The 4 points of appeal are all pertinent to your POPLA appeal so don't remove any - but is the detail right in terms of the signage/ rejection letter wording? The tenancy makes no difference to a POPLA appeal and I have included the 4 points that will win. You just need to check it and don't add ANYTHING that accidentally talks about the driver.

When you submit it, tick 3 out of 4 appeal grounds (not the stolen car one).

None of this is relevant nor does it affect the POPLA appeal:
a) Every flat has a parking space allocated, the parking spaces are numbered. Some of the flats I believe though do share spaces.
b) Permits were handed out a few months after we moved in as non residence were using the free parking.
c) Each permit is numbered with the corresponding parking bay

But I do wonder why on earth residents swallow this bullying. Who says non residents were parking there - the PPC?! Maybe it was just busy due to visitors to the flats, more than likely perfectly legit people parking all along, how could anyone know otherwise? And in any case why would you all want a protection racket on site? Why shows permits at all, kick them out, make a fuss and go and put a note in other residents' letter boxes, or on a communal noticeboard telling them the 4 points of appeal that win at POPLA in these cases! And/or attend any meetings and object to this scam and tell your landlord, the lessee, that this is an utter racket and you are feeling hounded and harassed, and you hope they will vote to scrape off the parasites, not needed on site. It was a BIG MISTAKE to allow it, probably foisted upon lessees by the managing agent (who may well be getting a backhander from each ticket) but that doesn't mean you and your landlord have no right to make your feelings known. Guess who gets all the fake PCNs? Residents and delivery drivers and visitors of course.

Akumo

Hi

Before I finally submit my appeal, I contacted the housing officer for the block of flats of where we live, he stated that there is a 10 minute grace period, as the two photographs are time stamped and only 7 minutes apart is this another point I should put into my appeal?
Once again, thank you for your help.

Regards

Akumo

ColliesCarer

Yes I would, and if there anything in writing about the grace period that you could be given a copy of so much the better

Akumo

Hi
Just submitted, I'll see if I can get something in balck and white from him and submit it as evidence.
Regards

Akumo

Akumo

Hi Coupon Mad
Once again a big thank you to you and to everyone else for the help you have provided, I have just received an email this afternoon from POPLA saying that my appeal has been allowed. It looks like UK CPM could not even be bothered to provide any evidence.
If you want my to upload the appeal I can do this.
All the best
Akumo