A-S parkign advice

rob392

Hi All,

Due to the fact that I am leaving the country for 6 weeks on Tuesday, I have prepared a popla appeal to be sent off when the code is finally sent through (someone in my house will post it whilst I am away).

Could you please have a look to see if you feel any changes are needed?


Dear POPLA
Address

My Deatils
PCN No.
Issued.
Reg.
Todays Date


I wish to appeal against the PCN notice on the following grounds.

1) The charge is a penalty, is punitive and is not a genuine pre-estimate of loss'.
In my appeal and for this charge to be justified, a full breakdown of the costs A S Parking has suffered as a direct result of the car being parked at XXX Car Park is required and should add up to £100.00. As this charge must specifically relate to costs incurred through the car being at the car park, it seems clear that a charge of £100 per day (as quoted by A S parking in their correspondence to me) could not be a true reflection, as it is simply a “one size fits all” penalty for any length of ‘breach’, be it from 1 minute to 24 hours. Moreover, as the business costs of running A S parking cannot be taken into account – as these would occur regardless of the car being in the car park – A S Parking need to provide other examples of how they reached this sum.


To me it is clear that is merely an attempt to make profit through financially penalizing me, rather than to recover losses for the alleged breach. The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident.

Moreover I submit that the charge is grossly unfair, disproportionate, and punitive – contravening the Unfair Contract Terms Act 1997. The Unfair Terms in Consumer Contract Regulations 1999 also states that it is “unfair to impose disproportionate sanctions for a breach of contract”, and that “an unfair term in a contract … shall not be binding on the consumer”. By this, I feel that any contract that may have been entered into should not be binding.

2) Proprietary Interest
A S Parking have not demonstrated a proprietary interest in the land, because they have no legal possession which would give A S Parking any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, A S Parking lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge.


I believe there is no contract with the landowner/occupier that entitles them to levy these charges and therefore has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to A S Parking.

I expect A S Parking to prove that they are not in breach of section 7.1 of the BPA code. This proof must be in the form of a non-redacted contract, so that POPLA and myself can check that it allows A S Parking to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.).

3) Inadequate and non BPA compliant signage.

The driver was not aware of any signage at the site and did not expect to see any on what appeared to be a patch of sand to park on near a public beach. The signage was clearly not obvious enough and therefore I request that A S parking demonstrate that their signage is BPA compliant at this specific site.

Further to this, in their rejection to my appeal, A S Parking provided an artwork, not a photo, of the signage they claim to be at the XXX Car Park. This artwork of the signage stated that “All vehicles must be parked within a single allocated bay” and that contravention of this would lead to charges of £100 per day. I must point out that the area of land the car was parked on had no allocated bays as could clearly be seen by the photographic evidence they produced of the car, with cars seemingly parked where they liked. This indicates that their signage could not have possibly been at this site and, further that if it was, any driver seeing it would presume it was not referring to that area due to the lack of bays.

4) Breaking of BPA code of Practice and the KADOE contract with the DVLA

I would like to include this point to point out the unlawful conduct of A S Parking. Despite numerous requests via email and in writing, A S Parking refused to deal with my appeal and attempted to make me enter into additional correspondence to get a code. Moreover, they levy a £3 fixed charge on any payments made by card, which as I am sure you are aware, is not permitted.


Yours

Dee140157

On an initial glance this looks far too short.
Have you seen all the templates which are available when you click on "How to win at POPLA" in post 3 of the newbie thread?

For example this is only one of the ones linked to:
forums.moneysavingexpert.com/showthread.php?t=4995312

rob392

Cheers for having a look. I did read a fair few of those templates and adapted one of the most approiate to make this (I added quite a bit to it). Apart from a concluding statement, which I realised is missing, do you think it needs anything else specific? Many of the things around ANPR etc were not relevant in this case.

rob392

Having had alook at that example I've expanded the part on GPEOL. Does this look better?

Dear POPLA
Address

My Deatils
PCN No.
Issued.
Reg.
Todays Date


I wish to appeal against the PCN notice on the following grounds.

1) The charge is a penalty, is punitive and is not a genuine pre-estimate of loss'.
In my appeal and for this charge to be justified, a full breakdown of the costs A S Parking has suffered as a direct result of the car being parked at XXX Car Park is required and should add up to £100.00. As this charge must specifically relate to costs incurred through the car being at the car park, it seems clear that a charge of £100 per day (as quoted by A S parking in their correspondence to me) could not be a true reflection, as it is simply a “one size fits all” penalty for any length of ‘breach’, be it from 1 minute to 24 hours. Moreover, as the business costs of running A S parking cannot be taken into account – as these would occur regardless of the car being in the car park – A S Parking need to provide other examples of how they reached this sum.


To me it is clear that is merely an attempt to make profit through financially penalizing me, rather than to recover losses for the alleged breach. The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident.

Neither is this charge 'commercially justified'. In answer to a proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

Finally on this point, I submit that the charge is grossly unfair, disproportionate, and punitive – contravening the Unfair Contract Terms Act 1997. The Unfair Terms in Consumer Contract Regulations 1999 also states that it is “unfair to impose disproportionate sanctions for a breach of contract”, and that “an unfair term in a contract … shall not be binding on the consumer”. By this, I feel that any contract that may have been entered into should not be binding.

2) Proprietary Interest
A S Parking have not demonstrated a proprietary interest in the land, because they have no legal possession which would give A S Parking any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, A S Parking lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge.


I believe there is no contract with the landowner/occupier that entitles them to levy these charges and therefore has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to A S Parking.

I expect A S Parking to prove that they are not in breach of section 7.1 of the BPA code. This proof must be in the form of a non-redacted contract, so that POPLA and myself can check that it allows A S Parking to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.).

3) Inadequate and non BPA compliant signage.

The driver was not aware of any signage at the site and did not expect to see any on what appeared to be a patch of sand to park on near a public beach. The signage was clearly not obvious enough and therefore I request that A S parking demonstrate that their signage is BPA compliant at this specific site.

Further to this, in their rejection to my appeal, A S Parking provided an artwork, not a photo, of the signage they claim to be at the XXX Car Park. This artwork of the signage stated that “All vehicles must be parked within a single allocated bay” and that contravention of this would lead to charges of £100 per day. I must point out that the area of land the car was parked on had no allocated bays as could clearly be seen by the photographic evidence they produced of the car, with cars seemingly parked where they liked. This indicates that their signage could not have possibly been at this site and, further that if it was, any driver seeing it would presume it was not referring to that area due to the lack of bays.

4) Breaking of BPA code of Practice and the KADOE contract with the DVLA

I would like to include this point to point out the unlawful conduct of A S Parking. Despite numerous requests via email and in writing, A S Parking refused to deal with my appeal and attempted to make me enter into additional correspondence to get a code. Moreover, they levy a £3 fixed charge on any payments made by card, which as I am sure you are aware, is not permitted.

In conclusion, based on the grounds I have outlined I fully expect this PCN appeal to be accepted and A S Parking to stop pursuing me regarding this matter.

Yours

Coupon-mad

1. Make sure the POPLA appeal is done in the same name as the person who was sent the code (your Mum?).


2. The only bits I am uncomfortable with as they are not quite worded in a slam-dunk 'winning way' are points 2 and 3 now.

For point #2 adapt/change to suit, this sort of thing about case law on unclear signs:

https://forums.moneysavingexpert.com/discussion/comment/65877901#Comment_65877901


and for point #3 I am just concerned that this isn't quite strong enough:

'I believe there is no contract with the landowner/occupier that entitles them to levy these charges and therefore has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to A S Parking. I expect A S Parking to prove that they are not in breach of section 7.1 of the BPA code. This proof must be in the form of a non-redacted contract, so that POPLA and myself can check that it allows A S Parking to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.)....


Should be less reliant on a mere breach of the BPA Code and more about 'no locus standi' (= no legal standing):


'I believe there is no contract with the landowner/occupier that assigns specific proprietary rights to this Operator, who therefore has no authority. The BPA Code of Practice specifically requires a landowner contract to include whether or not an Operator is authorised to enforce the charges in the courts if necessary and whether an Operator can make contracts in their own right with drivers. This being the case, the burden of proof shifts to A-S Parking who must show their unredacted landowner contract for this site. A witness statement or brief Site Agreement (with no detail of restrictions, charges, assignment of rights, payments between the parties, and who can enforce the charges in the courts, etc.) will not suffice. I am not merely querying this Operator's authority to 'issue PCNs' because clearly they can and do. Of course, anyone could put pieces of paper on windscreens like confetti, even a caretaker or cleaner and they would have no locus standi either.

I expect A-S Parking to prove that they are not in breach of section 7.1 of the BPA code. This proof must be in the form of a non-redacted contract, so that POPLA and myself can check that it allows A-S Parking to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.).


Finally you could add a final appeal point:


5) No Notice to Keeper was issued and my details were not obtained from the DVLA - so there is no keeper liability under the POFA 2012.
A-S Parking has failed to send me a Notice to Keeper (NTK) between day 29 and day 56 following the windscreen ticket, and I also believe they did not obtain my details from the DVLA. I appealed and gave my full details in response to their insistence on receiving 'a name and address' at the time of the first appeal, and they knew from the outset that I was the keeper and further, that I was not the driver. The driver's full name and address for service was never supplied. However, in order for a firm to invoke 'keeper liability' under the POFA 2012 they have to issue a compliant NTK within the right timescale, having first obtained the keeper's data only from the DVLA. There is no other pathway within the POFA 2012 to obtain keeper liability, even if the keeper contacts the operator and appeals within the first 28 days, as I did.