JAS parking fine - help with POPLA appeal please!

mrsljt

Hi everyone

Can I firstly just say that this forum is amazing and so much work must have gone into all the answers, templates, advice, etc in here - so informative and helpful! Especially for a complete novice like me!

Anyway, to cut a long story short I have been issued a ticket by JAS Parking Solutions at the B&M / Dreams site in Stockport for leaving the site. What makes it super annoying is that I had actually been shopping in B&M (gotta love a bargain) and the time they first photographed my car is the time I was actually stood at the till paying! I've mentioned that in the letter but not sure if that's just because it annoys me so much or if it's actually relevant!

I have appealed the ticket and, unsurprisingly, JAS have rejected the appeal, stating:
The reason you were issued the parking charge notice was because you parked your vehicle and used the premises. Upon your return you then went elsewhere which is not authorised. When the parking charge notice was issued you were not inside B&M/Dreams. B&M/Dreams car park is only for customers whilst using the premises. Our car park terms and conditions are clearly written on the 9 sign boards that are displayed throughout the car park.

Our sign boards clearly state below.
• Vehicle left in the car park before or after using either premises.

Boo, hiss. On to POPLA I go....

I have done a draft of the email I am going to send and wondered whether I could maybe have some feedback / constructive criticism. I hold my hands up and admit to cutting and pasting from various templates, but I have tried to use relevant examples, including sections from anpther appeal letter from the same carpark. (I can't post a link as a new user). I'm not sure how she got on with her appeal.

This is my first draft. It seems very long to me, but I'm not sure if this is normal?

"APPEAL RE: PPC Name CHARGE ******/******,*********
CAR PARK **/**/2014, VEHICLE REG: **** ***

I am the registered Keeper of the above vehicle and 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.The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.

3.The signage at the car park was not compliant with the British Parking Association standards and there was no valid contract between the parking company and the driver.

4.Neither the parking company or their client has proved that they have planning consent to charge motorists for any alleged contravention.

Please see below for the detailed appeal points.


1.The amount demanded is not a Genuine pre-estimate of loss.
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 so there can be no loss arising from the incident. JAS notices allege a 'breach of terms' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event.

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 following from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre.
However, a this is a free carpark. 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. As there was no payment due there can’t be any genuine loss.

In addition, the carpark was being used in its intended way, ie to shop at one of the stores on site (B&M - receipt attached). In fact, when the JAS operative took the photograph of the car, the driver was paying for shopping in B&M! My understanding is that JAS actively watch shoppers to see if they leave the land (a member of staff in B&M confirmed this is how JAS monitor the site and I have personally visited the carpark since the event and witnessed this happening). However, if an operative watches a driver walk away from what they consider to be the 'site boundary' then, as stated by Judge McIlwaine in VCS v Ibbotson, the PPC has a duty to mitigate and loss - in this case by stopping the driver and warning them about the issue. I can confirm that this did not happen on this occasion.

The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. 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.

I require JAS 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. Note:- the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and can not include speculative future costs relating to internal appeal procedures or mounting a POPLA defence. 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 JAS 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, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.

2. No valid contract with landowner
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 this, 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 JAS to produce a copy of the contract with the landowner that shows POPLA that they do, indeed, have such 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 accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner, has read the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company.

3. None-compliant signage, therefore lack of contract between JAS and the driver
Following receipt of the charge, I have personally visited the site in question. 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 or understand when driving into this car park. JAS 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 drive in. 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. I require the operator to provide photographic evidence that proves otherwise.

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.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

4. Authority to issue tickets
Planning consent is required for car parks and have conditions that grant permission, as the car park provides a service to the community. To bring in time limits, charges and ANPR cameras, planning consent is required for this variation. 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.

I note that the parking company has not been engaged by the landowner, but by a lessee or tenant of the land. I require proof from the actual landowner that their contract with the lessee/tenant gives authority for any form of parking restrictions or charges to be brought in.


This concludes my appeal and I request that it upheld and for POPLA to inform JAS to cancel the PCN.


Any thoughts on this appeal? All advice very gratefully received.

Cheers
L

Redx

you cannot email a popla appeal, you log it online using chrome or a similar browser and attach the appeal , or you print and post it

you can find a successful one for the same car park and contravention here https://forums.moneysavingexpert.com/discussion/4868096

so a simple copy and paste and make sure none of his info is in your appeal

mrsljt

Thanks for that, Redx. Took me a while to get to his actual letter (!) but I'll make amendments tomorrow and base mine on his points. Can I just check though that the points I raised were relevant?

When I said "email" the appeal, I meant through the site, but thanks for the heads up anyway.

Cheers
L:)

mrsljt

Hi

Just thought I'd post an update.

I received the POPLA decision this afternoon and they have upheld the appeal! :T:T:T

I've posted the response below. They have only upheld it on the basis that the fine wasn't a genuine pre-estimate of loss - something worth bearing in mind for any future problems people may have.

Thanks again for all the help,
L :beer:



The Operator issued parking charge notice number ****** arising out of the presence at B & M / Dreams, Stockport, on ** April 2014, of a vehicle with registration mark *******.
The Appellant appealed against liability for the parking charge.
The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.
The Assessor’s reasons are as set out.
The Operator should now cancel the parking charge notice forthwith.
2 25 June 2014
Reasons for the Assessor’s Determination
On 4 April 2014, the appellant was issued with a parking charge notice for breaching the terms and conditions of the parking site.
It is the operator’s case that the appellant left the site whilst their vehicle remained parked at the site. There is photographic evidence to support that there was adequate signage at the site to inform motorists of the parking terms and conditions. There is also evidence which shows the appellant’s vehicle parked at the site.
The appellant has made a number of submissions, however, I will only elaborate on the one submission that I am allowing this appeal on, namely that the parking charge amount is not a genuine pre-estimate of loss.
The burden is on the operator to prove that the parking charge is a genuine pre-estimate of loss. The operator has stated that the parking charge has been calculated in accordance to BPA guidance. However, the operator has not produced a breakdown of costs incurred as a direct result of the appellant’s alleged breach. Therefore the operator has failed to establish a genuine pre-estimate of loss. On this occasion, I am not satisfied that the operator has discharged the burden.
Accordingly, this appeal must be allowed.