Wing Parking & Debt Recovery Plus Ltd

Coupon-mad

Post #60 on pepipoo here has a recently worded Wing POPLA appeal:

http://forums.pepipoo.com/index.php?showtopic=88963&st=40

May not be quite the same if there is no Traffic Order for your site (if you have time, ring the Council or email them this week and ask, after you've read that other thread). But it's important to include all the possible winning points, especially as it seems you have never said who was driving and there was no NTK (and if there was then it was a non-compliant PCS green version like the one shown in the pepipoo thread). Either way there is no keeper liability and no GPEOL and no standing for Wing to pursue this in their own right. You win.

Aussie_Londoner

What's my line of argument if there was no NTK at all? About 4 months after the PCN, a letter directly from the debt collector. Does the PCN count as the NTK or not? If that's the case, then can I argue no keeper liability under PoFA 2012 as the operator failed to issue a NTK, hence they cannot pursue the keeper for the outstanding charge?

This will be one of many arguments in the appeal letter, which I will post shortly...

bod1467

A windscreen PCN does NOT count as an NTK. In the absence of a formal notice from the PPC then the first debt collector letter acts as the NTK. (That's the stance to take anyway).

Coupon-mad

Aussie_Londoner wrote: »

What's my line of argument if there was no NTK at all? About 4 months after the PCN, a letter directly from the debt collector. Does the PCN count as the NTK or not? If that's the case, then can I argue no keeper liability under PoFA 2012 as the operator failed to issue a NTK, hence they cannot pursue the keeper for the outstanding charge?

This will be one of many arguments in the appeal letter, which I will post shortly...

Yes, basically, you can argue that among other things. The windscreen PCN is not the NTK so there wasn't one served. So, no keeper liability.

Aussie_Londoner

Here is my appeal letter... please let me know if it's strong?

Dear POPLA


APPEAL RE: POPLA CODE XXXXXXXXX

Vehicle Registration: XXXXXX
PCN Ref: XXXXXX
Alleged Contravention Date: XX/XX/XXXX
Date of Notice: XX/XX/XXXX (date of debt collector notice)

On the alleged contravention date, Wing Parking (‘Wing’) issued a parking charge notice because the above vehicle failed to display a valid parking permit. This is allegedly in breach of the terms and conditions which Wing Parking allege are displayed on signage at parking area.

I am the registered keeper of the vehicle related to the parking charge notice received.

1. The charge is not a genuine pre-estimate of the loss

The amount of the charge is disproportionate to any alleged breach of contract and subsequent loss incurred by Wing Parking and is punitive, contravening the Unfair Contract Terms Act 1977.

As Wing Parking have alleged a breach of contract yet have not quantified their alleged loss or damage (which cannot include costs of managing and enforcing car parking), I consider this parking “charge” can only be an unlawful attempt at dressing up a penalty as a parking ticket.

Further yet, the amount of the charge does not even equate to local council charges for all day parking. I would question that if a charge can be discounted by £40 (from £100 reduced to £60) by early payment that it is unreasonable to begin with.

Further yet, the guidance offered by the Department of Transport set out in “Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges, September 2012”, under section 16, FAQ number 1 states 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”.

In a stage 1 appeal rejection letter sent from Wing Parking, the appeals administrator states that “the amount of our parking charges (in this case £100) accords with the recommendations of the British Parking Association”.

This is the extent of evidence presented by Wing Parking, which does not illustrate in any way how the charge issued by them in this instance relates to an actual loss. Wing Parking have provided no detail of their administration costs for issuing this charge. Based on the available information the charge is disproportionate to the known loss of the landowner and appears to be designed to penalise the driver. I submit this charge is therefore not legal.


2. Contract with the landowner – not compliant with the BPA Code of Practice and no legal status to offer parking or enforce tickets.

Wing Parking have not provided me with any evidence that it is lawfully entitled to demand money from the driver or keeper. They do not own, nor have any proprietary or agent rights or assignment of title or share of the land in question. I do not believe that the Wing Parking as the Operator has the necessary legal capacity to enter into a contract with the driver of a vehicle parking in a parking area they do not own, or indeed the lawful status to allege a breach of contract in their name.

Wing Parking must provide documentary evidence in the form of a copy of the actual site agreement with the landowner/occupier (and not just a signed letter saying it exists in). In order to comply with the British Parking Association (BPA) Code of Practice, Section 7, the contract needs to specifically grant Wing Parking the right to pursue parking charges in the courts in their own name, as a creditor.

Even if a basic contract is produced and mentions parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between Wing Parking and the owner/occupier, containing nothing that Wing Parking can lawfully use in their own name as a mere agent, that could impact on a third party customer.

As Wing Parking are only acting as agents on behalf of the owner (confirmed in their rejection letter dated XX/XX/XXX following my Stage 1 appeal), their parking signs do not help them form a contract without any consideration capable of being offered. In the case VCS Limited vs HMRC 2012 the binding decision in the Upper Tribunal which covers this issue with compelling statements of fact about this sort of business model.


3. I am not liable as the vehicle keeper

As mentioned, I am the registered keeper of the vehicle. For a registered keeper to be liable for the parking charge notice under Protection of Freedoms Act 2012 (‘POFA’) Schedule 4, section 8 requires a notice to keeper to be issued. To date, the operator has to date failed to issue such notice to keeper, and as such failed to meet the second condition under section 6(1).

Even if Wing Parking argues that the letter issued the debt collection agency is a sufficient notice to keeper, the letter dated XX/XX/XXXX is exactly 120 days after the parking charge date. This fails the relevant notice period allowed under POFA which allows two 28 day periods (56 days) after the notice to driver (i.e. the parking charge notice).

Section 8(4) states that:

The notice must be given by—
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.

And Section 8(5) states that:

The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.

As both the notice to keeper and the relevant period conditions are not not met, section 4(1) does not apply, and the Operator cannot pursue the vehicle keeper for the parking charge. As they have not provided any evidence who the driver was, they must cancel the charge.

Yours faithfully

[Name]

Coupon-mad

Yep that's a good draft. Point #1 needs 'emboldening' like the others. And remove this (below) as we don't quote VCS v HMRC any more as it's unhelpful:

''In the case VCS Limited vs HMRC 2012 the binding decision in the Upper Tribunal which covers this issue with compelling statements of fact about this sort of business model.''

Finally we always, always include 'unclear signage' if only to force the PPC to produce maps & signs of the right car park which Wing might find a challenge! Examples are in the NEWBIES thread post #3 'How to win at POPLA' where they all have a signage paragraph you can crib from.

Aussie_Londoner

Great thanks for the feedback. I have made your suggested changes and will submit the appeal letter to POPLA.

Just a final question, do I send a copy of the PCN, the debt letter and the Wing rejection letter as part of the appeal?

Redx

Aussie_Londoner wrote: »

Great thanks for the feedback. I have made your suggested changes and will submit the appeal letter to POPLA.

Just a final question, do I send a copy of the PCN, the debt letter and the Wing rejection letter as part of the appeal?

you only send any evidence in that backs up your popla appeal , its up to the "other side" to submit their paperwork , so if you have no evidence backing up your claim , dont send it in

Aussie_Londoner

Good news. We received an email from the PPC this week that they have decided not to contest our appeal and that the PCN has been cancelled.
Thank you all for your tailored responses. Another one for you guys!!!

Redx

well done m8, pleased to see you beat them at this game , they clearly were not up for a fight on this