Refusal of Popla code

ggddll

hi guys,

Relative newbie here so please have patience! Two weeks ago received a parking charge notice from civil enforcement limited. Duly responded back with template on sticky thread for "first appeal to PPC".

They responded with the following points (shortened version!):

- Although I'm the registered keeper and not driver I still have the driver contact details to enable them to recover amount due from the driver
- They are asking for driver details to be provided within seven days
- Legal basis for the ticket is "contract law". By parking in the car park where their signs clearly display the terms and conditions of parking, I consented by my actions (i.e. parking your car on the site), to be bound by such terms and now a payment is due
- The signage falls within the BPAs recommended guidelines
-- They cannot provide details of their clients due to data protection act
- they have not treated my letter as an appeal (despite stating I wanted to appeal as in the template letter) as they were "simply giving guidance on how to provide the driver's details and therefore no POPLA code is required"
-"In the event that you do not provide these details and payment is not received, we will have no option but to issue proceedings to recover the amounts due to us. We will add our additional costs, interest and fees to the claim"

I know they are obviously trying it on but can anyone suggest how can I respond to the above and get the popla code?

Apologies if this is covered before but I cannot find the guidance for this on the sticky thread.

Many thanks!

Umkomaas

Complain strongly to the BPA and the DVLA. Copy them with the reply CEL have sent you and copy your BPA and DVLA letters to CEL.

Email addresses for BPA and DVLA in the NEWBIES sticky.

Redx

post #6 has the guidance including email addresses

ie:- when it doesnt look right , complain

Lionman

Will complaining to the BPA and DVLA get the OP a POPLA code ?

Umkomaas

Lionman wrote: »

Will complaining to the BPA and DVLA get the OP a POPLA code ?

It might do better than that. There are a number of recent cases where the PCN has been dropped. Who needs a POPLA code then?

ggddll

Thanks all. Is there a specific section of legislation I should quote in these letters to BPA and Dvla ? One that specifically deals with refusing to issue poppa code? Thanks

Nodding_Donkey

It's the BPA code of practice. Linked from the newbies thread.

Coupon-mad

ggddll wrote: »

Thanks all. Is there a specific section of legislation I should quote in these letters to BPA and Dvla ? One that specifically deals with refusing to issue poppa code? Thanks

Not legislation but BPA CoP including the DVLA/BPA reminder from earlier this year:

https://forums.moneysavingexpert.com/discussion/4959894

Quote it at them and ask what part of it they didn't understand?

ggddll

[FONT=&quot]Hi guys,[/FONT]
[FONT=&quot]Thanks for yoiur help so far. Reporting Civil Enforcement Ltd to DVAL and BPA seems to have driven them to issue a POPLA code. [/FONT]
[FONT=&quot]Please can you shed some of your wisdom and advice on the proposed popla letter to Civil Enforcement Ltd below?[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Feedback greatly appreciated.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Dear POPLA,
I am the registered keeper & this is my appeal to Civil Enforcement Limted: [/FONT]

[FONT=&quot]1) The Charge is not a genuine pre-estimate of loss

[/FONT][FONT=&quot][/FONT]
[FONT=&quot]
The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

[/FONT]
[FONT=&quot]I put Civil Enforcement to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated and how it was caused by this alleged 12 minute parking event.[/FONT]
[FONT=&quot]
2) Lack of signage - no contract with driver
I see that the sign is placed high up and is unlit, so that in darkness no signs are visible and the words are unreadable. I put Civil Enforcement Ltd to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. There is no lighting on site and the sign is not prominent, not reflective & placed too high to be lit by headlights. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.[/FONT]

[FONT=&quot]The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.[/FONT]
[FONT=&quot]
3) Lack of standing/authority from landowner[/FONT]
[FONT=&quot]CEL have no standing as they are an agent, not the landowner. They also have no BPA-compliant landowner contract containing wording specifically assigning them any rights to form contracts with drivers in their own name, nor to pursue these charges in their own name in the Courts.[/FONT]
[FONT=&quot]BPA CoP paragraphs 7.1 & 7.2 [/FONT][FONT=&quot]dictate some of the required contract wording. I put Civil Enforcement Ltd to strict proof of the contract terms with the actual landowner (not a lessee or agent). Civil Enforcement Ltd have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Civil Enforcement Ltd are entitled to pursue these charges in their own right.

I require Civil Enforcement Ltd to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority. [/FONT]
[FONT=&quot].
4) Non compliant Notice to Keeper - no keeper liability established under POFA2 2012[/FONT]

[FONT=&quot]The Notice to Keeper is not compliant with POFA 2012, Schedule 4 due to these omissions:
''9(2)The notice must—[/FONT]
[FONT=&quot](b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;[/FONT]
[FONT=&quot](c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;[/FONT]
[FONT=&quot](d)specify the total amount of those parking charges that are unpaid, as at a time which is—[/FONT]
[FONT=&quot](i)specified in the notice; and[/FONT]
[FONT=&quot](ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));[/FONT]
[FONT=&quot](e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—[/FONT]
[FONT=&quot](i)to pay the unpaid parking charges; or[/FONT]
[FONT=&quot](ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;[/FONT]
[FONT=&quot](f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—[/FONT]
[FONT=&quot](i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and[/FONT]
[FONT=&quot](ii)the creditor does not know both the name of the driver and a current address for service for the driver,[/FONT]
[FONT=&quot]the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid; [/FONT]
[FONT=&quot](h)identify the creditor and specify how and to whom payment or notification to the creditor may be made.''[/FONT]

[FONT=&quot]Where paragraph 9 requires certain wording, it is omitted from the PCN - except a small amended sentence on the payment slip (which has been found in Council PATAS appeals, not to count as the 'PCN' because it is a separate section, designed to be removed). Also, as keeper I cannot be expected to guess the 'circumstances in which the requirement to pay...arose' because the charge is stated to be based on 'payment not made in accordance with terms displayed on signage'. This so-called outstanding 'payment' is not quantified and the signs do not support that contention (see point 2). [/FONT]
[FONT=&quot]POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. ''Where a Notice is to be relied upon to establish liability ... it must, as with any statutory provision, comply with the Act.'' As the Notice was not compliant with the Act due to the many omissions of statutory wording, it was not properly given and so there is no keeper liability.[/FONT]

[FONT=&quot]5) Unreasonable/Unfair Terms
[/FONT][FONT=&quot]The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances. [/FONT]
[FONT=&quot]
An unlit sign of terms placed to high to read, is far from 'transparent'.[/FONT]

[FONT=&quot]Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described does not breach the UTCCRs and UCT Act.

6) Automatic number plate recognition (ANPR) [/FONT]
[FONT=&quot]BPA CoP paragraph 21 'Automatic number plate recognition' (ANPR) states:[/FONT]
[FONT=&quot]21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''[/FONT]

[FONT=&quot]Civil Enforcement Ltd fail to operate the system in a 'reasonable, consistent and transparent manner'. As Civil Enforcement Ltd place signs too high to see on arrival, there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret high-up spy camera - far from 'transparent' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I therefore respectfully request [/FONT][FONT=&quot]that my appeal is upheld and the charge is dismissed.[/FONT]

Stroma

That is a winner on the first part gpeol , send it with proof of postage