POPLA appeal, first draft for feedback please

ColliesCarer

the writer acknowledges themselves as the driver?....... So i my draft below I have done that and referred to myself as th keep eronly . . .

Yes that OP was appealing as the driver and you have done the right thing to change it to keeper

It's ok to say that you revisted the site to gauge signage - as although you have to get your appeal in by the 10th (I believe) your appeal will probably not be assessed for 5 or 6 weeks.
You can submit evidence any time before the appeal is heard so plenty of time to revisit before then

photos for evidence?
They won't really expect you to supply photos of the signage - the onus is on the PPC to provide maps/photos etc of the signs on site to rebut your challenge. If you can get them before hand they may be useful for you to check the terms and conditions displayed and to check whether the PPC supplies the right photos in their evidence pack (which you'll get sent to you before the appeal is heard.

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?

It's ok don't worry - you challenge they have to disprove - all part of the process. They may show that the signs are perfectly adequate or they may not or they may forget to include any evidence at all.
Have a read of some of the winning POPLA decisions and you'll see how the assessments are done (see sticky NEWBIE post #3 for the link)

alstemp

Many thanks for feedback Collies Carer - good to know about having plenty of time to go back to the site and assess the signs etc.

REgards the actual appeal letter content, do you think it's more robust now and more or less ready to go?

ColliesCarer

have you seen your pm?

ColliesCarer

You asked the following in an earlier post

Also can you send both a posted appeal and one online or does it have to be one or the other?

You can submit both.
Ensure the POPLA code is on every page and number the pages x of x to ensure nothing gets overlooked.

The on-line appeal text box has I think a character limit of about 5000 chars - but files can be attached in the evidence submission option - so when filling in the appeal section - you can just put something like - "I am submitting an appeal for POPLA Verification code xxxxxxxxxx which I have attached as file xxxxxxxxxxxxx"

if also sending a back up hard copy - send from the post office getting free cert of posting

alstemp

Hi - after further feedback from fellow MSE's I have below posted the latest version of my POPLA appeal letter for review. Please let me know if you think any of theis should be amended.

I have to get this into POPLA by close of play this Thursday 10th.

many thanks

"APPEAL RE: PPC Name
CHARGE ******/******,*********
CAR PARK **/**/2013,
VEHICLE REG: **** ***


I am the keeper of the above vehicle and I am appealing against the 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 amount demanded is not a genuine pre-estimate of loss.

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

3. Signage not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver

4. No planning consent to charge motorists for any alleged contravention.

Here are the detailed appeal points.

1. 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 car park is free and there is no provision for the purchasing of a ticket or any other means for paying for parking. There was no damage nor obstruction caused (nor is any being alleged). It is my understanding that on the day in question the car park was full and the occupants of the vehicle gave their patronage to a number of outlets on the leisure park during their visit, consequently, I assert there can be no loss to UKPC arising from the incident.

Given that UKPC charge the same fixed sum for 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.

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.

The Office of Fair Trading has stated to the BPA Ltd 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.

As I submit that the charge is not a genuine pre estimate of loss, 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.

If the Parking Charge is instead argued to be a contractually agreed sum (which the wording of the appeal rejection letter implies it is not; it is citing breach of terms and conditions), the BPA Code of Practice states this cannot be punitive or excessive, which a charge of the amount stated clearly is.

I put UKPC to strict proof to the contrary if they wish to rebut my challenge.
2. UKPC has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.

UKPC have no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts. 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.

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 the above, 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.

If UKPC’s 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 UKPC the standing to make contracts with drivers and pursue charges in the courts in their own name.

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 from the landowner, if it 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.”

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 disregarded as being insufficient to prove UKPC have the necessary legal standing to form contracts with drivers and to pursue parking charges in the courts in their own name.

I put UKPC to strict proof to the contrary if they wish to rebut my challenge.

3. Signage 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 visited the site in question. I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because UKPC are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). 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.
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, understand and agree to 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 enter in all light conditions. 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 and 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 they 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 as it 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.


4. No planning consent to charge motorists for any alleged contravention

I have no evidence that UKPC or their client have planning consent to charge motorists for any alleged contravention.

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.

This concludes my appeal which I respectfully request is upheld.

ColliesCarer

Hi Alstemp,

As No GPEOL is the key point that most appeals win on I would just make one final suggestion.

Which is in point 1, I would change this para:

There was no damage nor obstruction caused (nor is any being alleged). It is my understanding that on the day in question the car park was full and the occupants of the vehicle gave their patronage to a number of outlets on the leisure park during their visit, consequently, I assert there can be no loss to UKPC arising from the incident.

To read:
There was no damage nor obstruction caused (nor is any being alleged), patronage was given to a number of outlets (to their benefit) and I assert there can be no loss to UKPC arising from the alleged breach in free car park.

On the basis of - why someone parked where they did doesn't matter (so is better left out) what matters is - there was no damage, the vehicle wasn't stopping other vehicles parking - i.e no obstruction, the retailers benefited (so they didn't lose) and there was no loss to UKPC because this was a free car park.

The rest should be fine.

Coupon-mad

It all looks absolutely fine now and much more relevant!