First Parking POPLA

fakesheikh

Hi all,

Just got a popla appeal letter from First Parking LLP after my appeal letter was rejected by the PPC.

The alleged offence occured in a disabled bay when I parked to pick up my disabled friend.

I've got a popla appeal letter I'm about to submit but need some help just to make sure its up to scratch.

Thanks

As the driver 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. A blue badge is never valid on private land.

3. The notice to keeper ‘NTK’ was issued outside of the 56 day limit.

4. Flawed landowner contract.

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 disabled bay parking I contest that £80 is not a reasonable or 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 at the time.

There was no damage or obstruction caused so there can be no loss arising from the incident. First Parking LLP 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. Given that First Parking LLP 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. The Contravention Code and the signage is unfair and unlawful in that the wording about 'Blue Badges/disabled badges' tries to create an alleged contractual term which breaches the Equality Act 2010. Like most private parking companies, First Parking LLP wrongly assume and suggest that disabled people have to have a Blue Badge to use this bay - this is simply not so. Ignorance of the law is no defence for creating an unfair and unlawful term - and a contractual term is null and void if it tries to circumvent the law of the land. Quite simply, a disabled bay on private land is there as a 'reasonable adjustment' for any disabled visitor who has need of that particular bay as a result of their 'protected characteristic'. PCM's staff should have been adequately trained in the Equality Act 2010 and should know that a person can use such a bay without being harassed if they meet the definition of disability within the Act. Indeed the Blue badge scheme is an irrelevant on-street Council scheme only and cannot lawfully be the only identifier of a disabled visitor's needs when in a private car park.

3. A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered either
A) (Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver; or
(Where no notice to driver has been served (e.g ANPR is used)) Not later than 14 days after the vehicle was parked
In this case the notice to keeper was issued 68 days after the alleged offence, therefore the NTK issued by First Parking LLP was invalid.


4. 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 have requested that First Parking LLP produce a copy of the contract with the landowner which they have failed to do so, 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 First Parking LLP 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 First Parking LLP witness statements have been robustly and publicly discredited and are - arguably - not worth the paper they are photocopied on. I suggest First Parking LLP 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 First Parking LLP to cancel the PCN.

Yours faithfully

fakesheikh

Going to send this,

As the driver 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. A blue badge is never valid on private land.

3. The notice to keeper ‘NTK’ was issued outside of the 56 day limit.

4. Flawed landowner contract.
5. Lack of BPA compliant signage.
6. No photographic evidence of alleged offence.

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 disabled bay parking I contest that £80 is not a reasonable or 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 at the time.

There was no damage or obstruction caused so there can be no loss arising from the incident. First Parking LLP 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. Given that First Parking LLP 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. The Contravention Code and the signage is unfair and unlawful in that the wording about 'Blue Badges/disabled badges' tries to create an alleged contractual term which breaches the Equality Act 2010. Like most private parking companies, First Parking LLP wrongly assume and suggest that disabled people have to have a Blue Badge to use this bay - this is simply not so. Ignorance of the law is no defence for creating an unfair and unlawful term - and a contractual term is null and void if it tries to circumvent the law of the land. Quite simply, a disabled bay on private land is there as a 'reasonable adjustment' for any disabled visitor who has need of that particular bay as a result of their 'protected characteristic'. PCM's staff should have been adequately trained in the Equality Act 2010 and should know that a person can use such a bay without being harassed if they meet the definition of disability within the Act. Indeed the Blue badge scheme is an irrelevant on-street Council scheme only and cannot lawfully be the only identifier of a disabled visitor's needs when in a private car park.

3. A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered either
A) (Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver; or
(Where no notice to driver has been served (e.g ANPR is used)) Not later than 14 days after the vehicle was parked
In this case the notice to keeper was issued 68 days after the alleged offence, therefore the NTK issued by First Parking LLP was invalid.


4. 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 have requested that First Parking LLP produce a copy of the contract with the landowner which they have failed to do so, 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.
5. There is/was categorically no contract between the driver and First Parking LLP. No signs were observed. There were no large BPA standard signs when the car park was first entered therefore there was no idea of any alleged contract or restrictions.
There were no signs at all located near where the car was parked.
I require First Parking LLP to provide POPLA with evidence that its signage is compliant with BPA rules upon both entry and where the car in question was parked.
6. First Parking LLP have also failed to provide me with photographic evidence of the alleged offence despite a formal request to do so. Therefore I demand that First Parking LLP supply POPLA with all the relevant photographic evidence as requested.


In view of the above evidence I request that my appeal is upheld and for POPLA to inform First Parking LLP to cancel the PCN.

da_rule

You're identifying yourself as the driver, did you appeal as the driver or the registered keeper?

Guys_Dad

Playing Devil's advocate, having a blue badge is a requirement of the PPC to use these specific bays. You broke their t&c as regards that.

Your argument is that they should have spaces for all disabled drivers and not just blue badge holders. You are correct, but you would need to take action in another place to pursue that point using the Equality legislation. So they could say "We admit that we may not be meeting Equality legislation, so sue us! It doesn't change our right to put any conditions on particular parking spaces and we want blue badges for the one in question"

They could have a sign that said "Black cars only in this space" and if you had a silver one, you would be breaking the t&c if you parked there.

Personally, I would remove the blue badge point as it is superfluous to your otherwise comprehensive appeal.