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POPLA appeal, first draft for feedback please
alstemp
Posts: 129 Forumite
[FONT="]Hi everyone[/FONT]
[FONT="] [/FONT]
[FONT="]I received a UK Parking Control notice (with photo evidence) on 18th February after I parked at Crawley Leisure Park in Crawley Sussex on 18 January on the grounds of “Not parked directly within the markings of the bay or space”. But there were absolutely no signs saying you couldn’t park there etc. Anyway, following advice on this forum I appealed, was rejected but got a POPLA reference from UKPC.
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[/FONT]
[FONT="]I have now adapted the various templates on here to create my own appeal but basically thrown everything but the kitchen sink into the content as I have no idea what is relevant or not! For example point 2 refers to byelaws for Southampton (taken from another poster’s thread) – do I need to localise it to Crawley?? Therefore need some experienced eyes to help me out. I have highlighted in red things that I think may need adapting or editing to make relevant. But where would I get UKPC specific cases from?
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[FONT="]The appeal needs to be completed by this Thursday 10 April and unfortunately I won't be able to get to the car park again to take any photographic evidence (I live in central London).[/FONT]
[FONT="]
[/FONT]
[FONT="]Also can you send both a posted appeal and one online or does it have to be one or the other? Thanks in advance as ever for feedback and advice . . .
[/FONT]
[FONT="]Dear Sir
POPLA reference xxxxx
PCN No.xxxxxx UKPC ref,xxxxxxxxx
Issued. xxxxxxxx
Reg.xxxxxxx
As the registered keeper of the above vehicle, 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. The amount demanded is not a genuine pre-estimate of loss.
2. There is no 'keeper liability' since bylaws apply at this Quay. This is not relevant land under POFA2012 so the NTK is flawed and not properly 'given'.
3. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver.[/FONT]
[FONT="] [/FONT]
[FONT="]4. ANPR Accuracy and breach of the BPA Code of Practice 21.3.[/FONT]
[FONT="] [/FONT]
[FONT="]5. Flawed landowner contract.[FONT="]
1. The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:
"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."
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 the Operator 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 follow, therefore, that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.
Considering the alleged 50 minute overstay I contest that £100 is not a reasonable or genuine pre-estimate of loss. 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.
There was no damage or obstruction caused so there can be no loss arising from the incident. UKPC notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. Given that UKPC 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 (whether serious/damaging, or trifling as in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.
In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.
Further to this in a recent decision about the Parking Eye car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept Parking Eye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.''
My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.
2. This particular site fails to meet the definition of 'relevant land' under the Protection of Freedoms Act 2012 (POFA) that might otherwise have enabled the Operator to pursue this matter with myself (the registered keeper). The Operator has issued a defective Notice citing an Act which does not apply at this particular site, in an attempt to claim an unenforceable charge from the keeper (myself). No keeper liability is likely to apply at all, due to the Associated British Ports' Southampton Harbour Bylaws taking precedence, and rendering this land outwith POFA and outwith 'registered keeper liability'. For this Operator to claim in their standard letters that they have the right to 'registered keeper liability' under POFA when that right is simply not available on land specifically covered by local Bylaws, is a breach of the Consumer Protection from Unfair Trading Regulations 2008. Such land is generally not 'relevant land' under the definition within POFA and if the Operator contends otherwise they will need to show POPLA documentary evidence from the landowner/client in possession of this site, or maps showing where the Bylaws cease to apply around this Quay.''.
3. Following receipt of the Notice to Keeper, I have personally visited the site in question, and attach photographic evidence of the signage. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) UKPC have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. All signage directed at drivers entering the area are high up on poles with and could not be read by occupants of a car. 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 the nominal amount presumably due in a machine on site.
The idea that any driver would accept these terms knowingly is perverse and beyond credibility, therefore no contract has been entered into by the driver with UKPC.[/FONT][/FONT]
[FONT="] [/FONT]
[FONT="]4. [FONT="]This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. UKPC have failed to clearly inform drivers what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.
In addition I question the entire reliability of the system. I require that UKPC present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from Parking Eye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
So, in addition to showing their maintenance records, I require UKPC to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put UKPC to prove the contrary.
[/FONT][/FONT]
[FONT="]5. [FONT="]Under the BPA CoP Section 7, a landowner contract must specifically allow the Operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. I require UKPC to produce a copy of the contract with the landowner as I believe it is not compliant with the CoP and that it is the same flawed business agreement model as in Sharma and Gardam.
If UKPC produce a 'witness statement' in lieu of the contract then I will immediately counter that with evidence that these have been debunked in other recent court cases due to well-publicised and serious date/signature/factual irregularities. I do not expect it has escaped the POPLA Assessors' attention that UKPC witness statements have been robustly and publicly discredited and are - arguably - not worth the paper they are photocopied on. I suggest UKPC don't bother trying that in my case. If they do, 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 or showing sufficient detail to disprove the findings in Sharma and Gardam.
In view of the above evidence I request that my appeal is upheld and for POPLA to inform UKPC to cancel the PCN.
Yours faithfully
THE REGISTERED KEEPER[/FONT][/FONT]
[FONT="][/FONT]
[FONT="] [/FONT]
[FONT="]I received a UK Parking Control notice (with photo evidence) on 18th February after I parked at Crawley Leisure Park in Crawley Sussex on 18 January on the grounds of “Not parked directly within the markings of the bay or space”. But there were absolutely no signs saying you couldn’t park there etc. Anyway, following advice on this forum I appealed, was rejected but got a POPLA reference from UKPC.
[/FONT]
[FONT="]
[/FONT]
[FONT="]I have now adapted the various templates on here to create my own appeal but basically thrown everything but the kitchen sink into the content as I have no idea what is relevant or not! For example point 2 refers to byelaws for Southampton (taken from another poster’s thread) – do I need to localise it to Crawley?? Therefore need some experienced eyes to help me out. I have highlighted in red things that I think may need adapting or editing to make relevant. But where would I get UKPC specific cases from?
[/FONT]
[FONT="][/FONT]
[FONT="]The appeal needs to be completed by this Thursday 10 April and unfortunately I won't be able to get to the car park again to take any photographic evidence (I live in central London).[/FONT]
[FONT="]
[/FONT]
[FONT="]Also can you send both a posted appeal and one online or does it have to be one or the other? Thanks in advance as ever for feedback and advice . . .
[/FONT]
[FONT="]Dear Sir
POPLA reference xxxxx
PCN No.xxxxxx UKPC ref,xxxxxxxxx
Issued. xxxxxxxx
Reg.xxxxxxx
As the registered keeper of the above vehicle, 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. The amount demanded is not a genuine pre-estimate of loss.
2. There is no 'keeper liability' since bylaws apply at this Quay. This is not relevant land under POFA2012 so the NTK is flawed and not properly 'given'.
3. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver.[/FONT]
[FONT="] [/FONT]
[FONT="]4. ANPR Accuracy and breach of the BPA Code of Practice 21.3.[/FONT]
[FONT="] [/FONT]
[FONT="]5. Flawed landowner contract.[FONT="]
1. The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:
"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."
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 the Operator 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 follow, therefore, that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.
Considering the alleged 50 minute overstay I contest that £100 is not a reasonable or genuine pre-estimate of loss. 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.
There was no damage or obstruction caused so there can be no loss arising from the incident. UKPC notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. Given that UKPC 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 (whether serious/damaging, or trifling as in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.
In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.
Further to this in a recent decision about the Parking Eye car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept Parking Eye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.''
My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.
2. This particular site fails to meet the definition of 'relevant land' under the Protection of Freedoms Act 2012 (POFA) that might otherwise have enabled the Operator to pursue this matter with myself (the registered keeper). The Operator has issued a defective Notice citing an Act which does not apply at this particular site, in an attempt to claim an unenforceable charge from the keeper (myself). No keeper liability is likely to apply at all, due to the Associated British Ports' Southampton Harbour Bylaws taking precedence, and rendering this land outwith POFA and outwith 'registered keeper liability'. For this Operator to claim in their standard letters that they have the right to 'registered keeper liability' under POFA when that right is simply not available on land specifically covered by local Bylaws, is a breach of the Consumer Protection from Unfair Trading Regulations 2008. Such land is generally not 'relevant land' under the definition within POFA and if the Operator contends otherwise they will need to show POPLA documentary evidence from the landowner/client in possession of this site, or maps showing where the Bylaws cease to apply around this Quay.''.
3. Following receipt of the Notice to Keeper, I have personally visited the site in question, and attach photographic evidence of the signage. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) UKPC have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. All signage directed at drivers entering the area are high up on poles with and could not be read by occupants of a car. 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 the nominal amount presumably due in a machine on site.
The idea that any driver would accept these terms knowingly is perverse and beyond credibility, therefore no contract has been entered into by the driver with UKPC.[/FONT][/FONT]
[FONT="] [/FONT]
[FONT="]4. [FONT="]This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. UKPC have failed to clearly inform drivers what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.
In addition I question the entire reliability of the system. I require that UKPC present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from Parking Eye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
So, in addition to showing their maintenance records, I require UKPC to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put UKPC to prove the contrary.
[/FONT][/FONT]
[FONT="]5. [FONT="]Under the BPA CoP Section 7, a landowner contract must specifically allow the Operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. I require UKPC to produce a copy of the contract with the landowner as I believe it is not compliant with the CoP and that it is the same flawed business agreement model as in Sharma and Gardam.
If UKPC produce a 'witness statement' in lieu of the contract then I will immediately counter that with evidence that these have been debunked in other recent court cases due to well-publicised and serious date/signature/factual irregularities. I do not expect it has escaped the POPLA Assessors' attention that UKPC witness statements have been robustly and publicly discredited and are - arguably - not worth the paper they are photocopied on. I suggest UKPC don't bother trying that in my case. If they do, 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 or showing sufficient detail to disprove the findings in Sharma and Gardam.
In view of the above evidence I request that my appeal is upheld and for POPLA to inform UKPC to cancel the PCN.
Yours faithfully
THE REGISTERED KEEPER[/FONT][/FONT]
[FONT="][/FONT]
0
Comments
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Looks good. All I would suggest is that you give the different points the same title in the text of the appeal as you have in the summary at the beginning.0
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Byelaws are generally related to airports, seaports, railways; it's unlikely your local leisure park will be subject to any byelaws, so you need to get rid of anything in your draft which references 'byelaws', otherwise from your appeal it will be obvious this is a copy & paste job, with little understanding of the points raised.
If there's anything obviously and hopelessly awry in your appeal like byelaws UKPC will undoubtedly attempt to discredit the whole appeal.
You need concentrate on the main points of no GPEOL, no contract which enables them to raise charges with motorists and to pursue in their own name, no locus standi and signage.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Good luck
I am at the same stage just posted a draft
different circumstances tho, but same timescale0 -
Just a couple of questions for you
Was this a free for x amount of time car par or a Pay&Display?
I assume you appealed to UKPC as the keeper - is that correct?
Was it a postal notice orginally - if so did it arrive with in 15 days of the alleged event and have you checked the Notice to Keeper against POFA section 9 for compliance ?
If originally windscreen ticket - did NtK arrive between days 29 - 56 after the event - and have you checked it against POFA section 8 for compliance?0 -
You have used a byelaws template for a non-byelaws case so of course you must remove that stuff. Also presumably yours wasn't even a camera ANPR ticket anyway, and yet you've cited ANPR as an appeal point?! And that one talks about 'an alleged 50 minute overstay' when your contravention was not parked within bay lines! Back to the drawing board, this is easy to do but don't seize the longest/first POPLA appeal you see!
Why not just use a template UKPC one from any other thread (searching this forum for 'UKPC POPLA' as keywords would be a good idea) or write your own version like these posters did:
https://forums.moneysavingexpert.com/discussion/4911394
The NEWBIES thread shows you some appeals to base yours on, but you must actually amend them to suit your own case and not pick one a million miles away from your own ticket. At least start with one that's about a windscreen ticket, not one with an ANPR paragraph that's talking about an overstay.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thanks to everyone for your feedback. I need to rewrite this obviously. So will do so and then re-post for further comments.
1 remove any references to byelaws
2 Collies Carer - Was this a free for x amount of time car par or a Pay&Display? i don't know how long the free time was for. I visit the park had dinner and saw a movie so as far as know the time is unlimited as did not have to get a ticket with a specified valid until time or anything.
I assume you appealed to UKPC as the keeper - is that correct? Yes I appealed as the keeper
Was it a postal notice orginally - if so did it arrive with in 15 days of the alleged event and have you checked the Notice to Keeper against POFA section 9 for compliance ? it was a windscreen ticket and the PCN was sent via post. What do you mean by Notice to Keeper against POFA section 9 for compliance?
If originally windscreen ticket - did NtK arrive between days 29 - 56 after the event - and have you checked it against POFA section 8 for compliance? I am not sure what this means. The PCN was dated 18 Feb and the date I parked was 18 January
3 Coupon Mad - i searched the forum for UKPC POPLA content but couldn't find anything. if you do know of a good UKPC template that you have seen please can you let me know or send me link
Thanks again everyone for all your help - sounds like I will have to go back to Square One if the above template isn't suitable. Is any of it useable in a UKPC case?
thanks regards0 -
Here is a link that would probably be a much better match for you if Crawlwy is free car park or free for x time car park - OP was dealing with UKPC for same issue not being within marked bay - see #48 for a POPLA appeal that only needs a bit of re-jigging to be suitable for you - UKPC folded - OP won as UKPC were a no show
See also post #53 for an ironic laugh
https://forums.moneysavingexpert.com/discussion/48179230 -
superb thanks for quick response - I will take a look
0 -
The first letter that arrives (PCN) is classed as a NOTICE to Keeper because they have obtained the keeper's details from the DVLA.
To to claim keeper liability they must comply with the Protection of Freedom Act (POFA) 2012 Schedule 4.
If there has been a windscreen ticket 1st then the NtK should be checked against section 8 of POFA 2012 Schedule 4 - because it has to comply with that for Keeper liability to apply.
If it doesn't comply you have extra grounds to include in your appeal - which is why I asked when it had arrived as this is one of the compliance requirements.
The PCN was dated 18 Feb (this was the NtK) and the date I parked was 18 January - so it was sent in correct time frame.
Re the draft POPLA appeal - Is any of it useable in a UKPC case?
Yes some of it is useable but as you said yourself you're not sure what's needed and what's not - you would probably have an easier task changing the one I linked - that will need far fewer tweaks0 -
Thanks Collies Carer for your link to a more appropriate appeal letter to POPLA in a UKPC case. that template you referred me to however, the writer acknowledges themselves as the driver? I thougth this was a definite no no and you only supposed to acknoweldged yourself as the registered keeper? So i my draft below I have done that and referred to myself as th keep eronly . . .
Also under POint 2 I am saying that I revised the site to gauge signage for further evaluation. But I did not - presume it's ok to tell this white lie??? and won't they wonder if I visited the car park again why I didn't take any photos for evidence? Also saying "too high & too small" ref the signs is a tad concerning as I really cannot remmeber if this is the case and UKPC may challenge that point? also someo of hte car park is undercover and some is outside and I know the signage undercover is illuminated but again cannot remember if there is any signage on the outside bit (whre i parked) and if that was sufficiently illuminated. I however very much doubt it was. Everyone else was doing the same thing as there were no other parking spaces left to park in !
so ref my revised draft below, is there anything that's missing now?? Thanks so much wise friends
"APPEAL RE: PPC Name
CHARGE ******/******,*********
CAR PARK **/**/2013,
VEHICLE REG: **** ***
I am the keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge and would ask that all grounds detailed below are considered:
1. The parking company or their client have not proved 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 here 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 right to charge motorists
Planning consent is required for car parks and these have conditions that grant certain permissions because the car park provides a service to the community. To charge motorists for an alleged breach of parking terms and conditions, planning consent is required. 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.
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 and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company.
To date the parking company has refused to provide this information on the grounds of confidentiality.
POPLA’s ‘coaching’ of the parking companies sought to make them aware that by calling the charges an ‘agreed fee’ for parking would bring this within the definition of an agreed contract accepted by the driver at the time of parking. In fact, the use of the car park was by agreement with the landowner at the time of entry to it. They made it available for use in connection with the use of the surrounding facilities as a free facility.
The charges by the parking company do not represent any landowner loss and are not in consideration of a loss for non payment for parking in line with the landowners own offer to park in this facility.
As a POPLA assessor has said previously in an adjudication:
“Membership of the Approved Operator Scheme does require the parking company to have clear authorization for the landowner, it if is not itself the landowner, as to its role I relation to the parking control and enforcement. This is set out in the BPA Code of Practice. However, as with any issue, if the point is specifically raised by an appellant in an appeal, then the operator should address it by producing such evidence as it believes refutes a submission that it has no authority.”
2. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver
Following receipt of the charge, I revisited 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 particularly since the signage itself does not appear to be illuminated thereby at night the signs cannot be seen clearly let alone any details contained on it. 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 enter in all light conditions. 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.
The charges demanded by the parking company did not form any part of the considerations of parking at the time of entry to the car park and were invoked only for the breach of an arbitrary condition for the use of the car park some time after arrival. To that end, if, as POPLA suggested in the workshops ran for the parking companies, this solidified as a contract then that contract has not sufficient depth to it to escape the provisions of the Unfair Terms in Consumer Contracts. Notwithstanding the failure of third party liability for a contract that was neither accepted or negotiated by the keeper.
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 especially considering that parking is free.
The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
3. 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 flowing 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 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.
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.
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.
To date the parking company have refused to provide this information.
This concludes my appeal.0
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