Popla appeal

123adam

I recently got a parking charge notice for parking on a road on a riverside development in London from PESS. Here is my suggested appeal letter to POPLA I would be grateful for any feedback before I submit on 14th May.


As the registered keeper of the vehicle,registration number XXXXX, I wish to appeal against the parking chargeissued by Parking Enforcement and Security Services (PESS).

My appeal is based on the following grounds.

1. No breach of contract and no genuine pre-estimate of loss.

2. Contract with the landowner – no locus standi.

3. Unclear and non-compliant signage, forming no contract with drivers.
4. Confusing and unclear Charge stated inParking Charge Notice
5. Inaccurate POPLA code provided


To expand on these points:

1. No breach of contract and no genuine pre-estimate of loss
PESS have demanded a chargeof £100 which escalates over time. Thisis a punitive charge as there has been absolutely no loss to the landowner in respectto this ‘contravention’ as there is no mechanism for charging to park in thisarea. The entirety of the parking chargemust be a genuine pre-estimate of loss and in order to be enforceable undercontract law. The estimate must be based upon loss flowing from a breach of theparking terms.

I require PESS to submit a full breakdown of how these losses are calculated inthis particular parking area and for this particular ‘contravention’. PESScannot lawfully include their operational day to day running costs (e.g.provision of signs and parking enforcement) in any ‘loss’ claimed. Not only arethose costs tax deductible, but were no breaches to occur in that car park, thecost of parking 'enforcement ' would still remain the same.

According to the Unfair Terms in Consumer Contract Regulations, parking chargesfor breach on private land must not exceed the cost to the landowner during thetime the motorist is parked there. As the landowner does not impose a parkingfee for the area in question, there is no loss to PESS nor the landowner. TheOffice of Fair Trading has stated that ''a ‘parking charge’ is notautomatically recoverable simply because it is stated to be a parking charge,as it cannot be used to state a loss where none exists.''

2. Contract with landowner - no locus standi
PESS do not own nor have any interest or assignment of title ofthe land in question which I understand is owned by XXXXXXXX (copied).As such, I do not believe that PESS has the necessary legal capacity to enterinto a contract with a driver of a vehicle parking in the car park, or indeedto allege a breach of contract. Accordingly, I require sight of a full copy ofthe actual contemporaneous, signed and dated site agreement/contract with thelandowner (and not just a signed slip of paper saying that it exists or the referencesto such an agreement on the PCN). Some parking companies have provided “witnessstatements” instead of the relevant contract. There is no proof whatsoever thatthe alleged signatory has ever seen the relevant contract, or, indeed is evenan employee of the landowner. Nor would a witness statement show whether thereis a payment made from either party within the agreement/contract which wouldaffect any 'loss' calculations. Nor would it show whether the contract includesthe necessary authority, required by the BPA CoP, to specifically allow PESS topursue these charges in their own name as creditor in the Courts, and to grantthem the standing/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witnessstatement was 'not valid evidence'. This witness statement concerned evidencewhich could have been produced but was not. So if the operator produces awitness statement mentioning the contract, but does not produce the actualun-redacted contract document, then POPLA should be consistent and rule anysuch statement invalid.

So I require the unredacted contract for all these stated reasons as I contendthe Operator's authority is limited to that of a mere parking agent. I believeit is merely a standard business agreement between PESS and their client, whichis true of any such business model. This cannot impact upon, nor create acontract with, any driver, as was found in case no. 3JD00517 ParkingEye vClarke 19th December 2013

In that case the Judge found that, as the Operator did not own anytitle in the car park: 'The decision to determine whether it is damages forbreach...or a penalty...is really not for these Claimants but...for the owners.We have a rather bizarre situation where the Claimants make no money apparentlyfrom those who comply with the terms...and make their profit from those who arein breach of their contract. Well that cannot be right, that is nonsense. So Iam satisfied that...the Claimants are the wrong Claimants. They have notsatisfied this court that they have suffered any loss...if anything, they makea profit from the breach.'

I challenge this Operator to rebut my assertion that their business model isthe same 'nonsense', and is unenforceable. PESS cannot build their wholebusiness model around profiting from those they consider to be in breach of asign, on land where they have no locus standi, and then try to paint thatprofit as a perpetual loss.



3. Unclear and non-compliant signage, forming no contract withdrivers.
There is inadequate signage in the area generally and in thespecific area my vehicle was parked. The signs are located around the perimeterof the area, a considerable distance from where I parked, consequently they areas good as invisible to any driver. Of critical importance is the lack of anysignage at the entrance to the area. BPACoP states that ‘In all cases, the driver’s use of your land will be governedby your terms and conditions, which the driver should be made aware of from thestart’. As the BPA make clear in the CoP‘Entrance signs play an important part in establishing a parking contract anddeterring trespassers. Therefore, as well as the signs you must have tellingdrivers about the terms and conditions for parking, you must also have astandard form of entrance sign at the entrance to the parking area. Entrancesigns must tell drivers that the car park is managed and that there are termsand conditions they must be aware of. Entrance signs must follow some minimumgeneral principles and be in a standard format. The size of the sign must takeinto account the expected speed of vehicles approaching the car park, and it isrecommended that you follow Department for Transport guidance on this. There areabsolutely no signs at the entrance to the area and this means that it is notclear to a driver that they are transitioning from the public highway toprivate land and the consequent changes in parking rules and regulations. This is particularly relevant given thealleged ‘contravention’ occurred on a Sunday when restrictions in the adjoiningstreets in the area are not in force.

The limited signage which is only clear ifyou drive further into the estate beyond the area I parked is high up and thebarely legible size of the smallprint means the signs in this car park are very hardto read. I contend that the signs and any core parking terms that PESS arerelying upon are too small for the driver to discern when driving into the areaand that the lack of any signage around the area my vehicle was parked mean that PESS have failed to complywith the BPA Code of Practice. I require signage evidence in the form of a sitemap and dated photos of the signs at the time of the parking event. I wouldcontend that the signs (wording, position and clarity) fail to properly informthe driver of the terms and any consequences for breach, as in the case ofExcel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not soprominent that they 'must' have been seen by the driver - who would never haveagreed to pay £100 in a free car park - and therefore I contend the elements ofa contract were conspicuous by their absence. No contract can be deemed to havebeen agreed where one party is unaware of said contract. As the signs aredeliberately placed where they are very difficult to see it is reasonable toargue that, for this reason, the contract is void. Please see the attachedphotos.



4. Confusing and unclear Charge stated in Parking Charge Notice

The charge states the following ‘parked morethan allowed time’. This is a ratherstrange statement which appears to contradict PESS' allegation that no parking isallowed in the area of the alleged ‘contravention’. I have since returned to the site on two occasionsand I have observed the practice in this area. It is clear that these threebays, although unmarked, are habitually used for visitors to the adjacent onsite conveniencestore. However, there is no signageindicating that short term parking is officially allowed. I believe the confusing statement suggests that parking for alimited and undefined period of time is being permitted by PESS. PESS should be asked to explain the use of this wording in the charge and the action they usually take in respect to cars parked in this area.

5. Inaccurate POPLA code provided (verification code: xxxxxxx).

My initial appeal which was sent by email wasrejected with an inaccurate POPLA code being provided (verification code:xxxxxxx. It was on throughsubsequent correspondence with PESS and a specific request for an accurate codethat one was provided on 16th April 2014 (verification code: xxxxxxxxx).


Based on the above arguments, I therefore respectfully request that my appealis upheld and the charge dismissed.

Coupon-mad

Please don't wait until 14th to submit this - it's too close to the wire. Do it tomorrow (13th). Have you checked the expiry date of the code using the POPLA code checker (linked in post #3 of the NEWBIES thread)?

The only bit that could be stronger I would say is this:

4. Confusing and unclear Charge stated in Parking Charge Notice

The charge states the following ‘parked more than allowed time’. This is a rather strange statement which appears to contradict PESS' allegation that no parking is allowed in the area of the alleged ‘contravention’. I have since returned to the site on two occasions and I have observed the practice in this area. It is clear that these three bays, although unmarked, are habitually used for visitors to the adjacent onsite convenience store. However, there is no signage indicating that short term parking is officially allowed. I believe the confusing statement suggests that parking for a limited and undefined period of time is being permitted by PESS. PESS should be asked to explain the use of this wording in the charge and the action they usually take in respect to cars parked in this area.


Without seeing the sign and the PCN (and the NTK if you waited for it) it is hard to know exactly what the position is but I would suggest something more like this (getting rid of 'I returned to the site' which accidentally suggests who the driver was of course!):

4. Confusing and unclear signage & PCN - no contract formed with driver

The PCN states the following: ‘parked more than allowed time’. This contradicts PESS' assertion that no parking is allowed in the area of the alleged ‘contravention’. I have visited the site recently and it is clear that these three bays are in fact unmarked and are habitually used for visitors to the adjacent onsite convenience store. However, there is no signage indicating that short term parking is in fact permitted - so how can a driver know whether parking is 'allowed' for a limited but undefined period of time? Further, it is not possible for a driver to enter into a contract to be allowed to do something which is disallowed. If parking is not allowed here, the signs and lines do not support this alleged restriction and in any case, this parking event could only fall within the tort of trespass which would not be a matter of breach of contract and would be a matter for the principal landholder only. The words on the sign are so unclear that they are incapable of forming a contract between a driver and this non-landowner firm. Where signage or any unilateral 'contract' is drafted in a confusing way, then the doctrine of contra proferentem applies and the interpretation which favours me as a consumer must prevail.

123adam

Great thanks. Will send today bu t have checked against the POPLA checker.