Parking Charge Notice

Dee140157

Www.dropbox.com/s/vu0kxv18smszpox/WP_20140522_004-20140522-191705566.jpg
And in oh so many ways.

Mr.Spock

Dee140157 - thanks for reply. To be clear are you saying the sign IS non-compliant in MANY ways. If so, could you specify how. I'm sending off the template rejection notice to CPM tomorrow.

Coupon-mad

The fact it says at the top 'unauthorised parking' is what results in a PCN, shows that this is not a contractual tariff/sum to ALLOW parking. They've worded it badly - it's a sign that alleges breach of contract and so they have to prove a GPEOL.

It's not about whether it 'complies' or not; it's not for you to waste your time checking - you should always include the allegation that it is not. So use the template and then at POPLA stage draw the Assessor's attention to that word 'UNauthorised' = breach = a charge has to be a GPEOL.

Like we keep saying - don't change the template, all of it is relevant including the signage part. Believe us!

Mr.Spock

Thanks Coupon-mad. Sending off template wording today and getting proof of posting from PO. Just added a short PS that they might want to consider the quality of their photographic evidence. (It was raining and the rear photo was taken from inside the operative's car so number plate partially obscured by a blob).

Mr.Spock

It's taken CPM 6 weeks but sadly they've finally come back rejecting my appeal based on the template letter you kindly provided. Their reason being that vehicle was parked upon yellow lines supported by photo evidence and signage clearly states 'No parking outside of a designated parking bay/parking area etc..'. Additionally the fee is a pre-estimate of loss. I now plan to appeal to POPLA but would appreciate your help as I'm not clear of my grounds for an appeal. I've previously posted a link to the photograph of the signage and been told by a member that it does not comply but I'm unclear how I use this in my appeal. Please advise where I go from here.

Coupon-mad

What did you expect, of course they rejected it?! They would. Have another look at the NEWBIES thread.

Mr.Spock

I'd be grateful if someone could run through this and make any suggestions or corrections as necessary. Your assistance is much appreciated.

For the attention of the POPLA Assessor:
As the registered keeper I wish to appeal PCN xxxxx issued to me by UK Car Park Management (hereinafter referred to as CPM).

The Background to the Appeal
On the day in question the driver stopped for a matter of minutes on double yellow lines in the Waterfront Business Park whilst awaiting the arrival of a relative off a train at nearby Fleet Station. As the station car park was closed due to reconstruction work, this was the only place where people could be safely picked up or dropped off. The driver was actually sitting in the car when the photographs were taken of the vehicle and the PCN stuck to the windscreen.

Lack of signage

There are no low-positioned, clear signs on entry to this road which would have communicated the terms and conditions of stopping there to a seated driver. This is a breach of BPA code of practice in Appendix B which sets out strict requirements for entrance signage, including ‘The signage should be placed so it is readable by drivers without their needing to look away from the road ahead.’ I would draw the Assessor’s attention to the ‘No Stopping Zones’ section of the Chief Adjudicator’s first Annual POPLA Report 2013:
“Typically the motorist may have stopped on a double yellow line… of course on the public highway this is generally permitted, although not on a red route where there is a clear red line. It is therefore very important that any prohibition is clearly marked; bearing in mind that such signage has to be positioned, and be of such a size, as to be read by a motorist without having to stop to look at it.”
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 was seated at all times did not see any sign, particularly the one highlighted in the photo of CPM’s rejection letter. There was no consideration/acceptance and no contract agreed between the parties.

Penalty for breach of contract or contractually agreed fee?

The position of CPM is unclear on whether their charge is for breach of contract or a contractually agreed sum. Their rejection letter states that a ‘breach of the Terms and Conditions of parking occurred’ i.e. a breach of contract but the signage states ‘you are contractually agreeing to pay a parking charge fee’ and ‘the following fees apply’. Thus the rejection letter relies on a breach of contract, but the signage wants this to be a contractually agreed amount i.e. a fee. CPM cannot have it both ways. If the charge is really a fee for services provided rather than damages, such payments are I believe subject to VAT (Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC (EWCA Civ 186 [2013]), but I have received no VAT invoice from CPM nor is there any reference to VAT in their signage or rejection letter. I require them to demonstrate by providing substantive evidence to POPLA that they account to HMRC for the VAT element on these sums. If CPM is unable to do so, then the parking charge cannot be deemed “a contractually agreed sum” or “fee” but must be treated as “damages for breach of contract or act of trespass”. This interpretation has added value if one considers that a contract requires minimally an offer, acceptance and consideration, but in this case there is clearly no offer of parking (as the signs refer to “unauthorised parking” and “parking without permission”) – i.e. a prohibition on parking. In essence the driver has unwittingly committed an act of trespass for a brief period of time from which no loss has arisen.

No contract exists
There was no contract between the driver and CPM. The driver did not see any contractual information on any signs when entering the area and was not aware of any restrictions. As a consequence the requirements for forming a contract, such as a meeting of minds, agreement, and certainty of terms were not satisfied. Therefore there can be no breach of contract or contractually agreed fee.
The charge is punitive and unreasonable
If the charge is deemed to be a contractually agreed sum, then the BPA state that it cannot be punitive or unreasonable. CPM has chosen the maximum sum stipulated by the BPA with no consideration as to what is reasonable, and I therefore challenge CPM to prove that the fee is not punitive and unreasonable. The Unfair Terms Consumer Contracts Regulations 1999 are relevant, in particular Regulations 5(1) and 5(2).

The charge is not a genuine pre-estimate of loss
If the charge is deemed to be damages for breach of contract or act of trespass, I argue that the charge is not a genuine pre-estimate of loss to the landowner. In their rejection letter CPM advise the fee is a pre-estimate of loss and the £100 fee covers PCN processing, cost of handling appeals, DVLA fees, ATA and ICO membership etc but I would argue that these costs are a direct result of running their business. I challenge CPM to provide evidence of the loss incurred, including only those losses consequential to the breach of parking terms and conditions and excluding any of their costs of running the business. I doubt CPM can 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. Standard 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. I therefore think the charges are punitive.

No authority to enforce charges

This is the relevant section of the BPA AOS Code of Practice:

7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary

CPM do not own the land on which the driver parked but by their own admission in their rejection letter ‘holds a legal contract with the landowner to monitor all parking areas on their behalf’. However, I question whether this contract gives CPM the authority to issue PCNs and to pursue third parties for parking charges through the courts. I therefore require strict proof that CPM has the proper legal authorisation from the landowner to contract with drivers and enforce charges in their own name in the courts, by providing POPLA with a full and complete copy of the current signed agreement with the landowner, in an unredacted state. Note in the case of ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013, District Judge Jenkins dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and the landowner and did not create any contractual relationship with motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No. 3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the defendant. District Judge Jones concurred with the view in ParkingEye v Shama that a parking operator has no standing to bring the claim in their own name.

Breaches of BPA AOS Code of Practice
Section 13 of the BPA AOS Code of Practice deals with grace periods:
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
CPM has blatantly disregarded this requirement. As the driver never left the vehicle for the short time it was parked on the double yellow lines, the CPM operator had every opportunity to ask the driver to move on without issuing a PCN. Note photographic evidence in CPM’s rejection letter clearly shows the driver in the car. However, it is my belief the operator clearly saw a huge revenue raising opportunity, given the considerable numbers of people using the area as a temporary pick-up and drop off zone while the station car park was closed. You might ask why the operator chose to photograph the rear of the car from the inside of his, and risk poor quality evidence due to his rain-splattered windscreen. It is my belief this was done to avoid alerting the parked drivers to his presence allowing him to issue as many PCNs as possible.
Section 22 of the BPA AOS Code of Practice deals with the operator’s process for dealing with complaints, challenges and appeals, and includes deadlines as follows:

22.8 You must acknowledge or reply to the challenge within 14 days of receiving it. If at first you only acknowledge the challenge, or your reply does not fully resolve it, normally we would expect you to seek the additional information you require from the motorist and accept or reject the challenge in writing not more than 35 days after the information required to resolve it has been received from the motorist. It is acknowledged that in exceptional circumstances, an investigation into a challenge may take longer than 35 days after such information has been received and in these instances the motorist must be advised accordingly and given a date by which they can expect a resolution. If this date cannot be achieved then the motorist must be written to again and a revised resolution date agreed. We may require you to demonstrate that you are keeping to these times.
CPM has also blatantly disregarded this requirement. The details are:

PCN issued xxxxxx
CPM formal demand dated xxxxxx
Challenge letter sent xxxxxx with proof of posting obtained from Post Office.
CPM’s rejection letter is dated xxxxx i.e. 54 days later.

I received no acknowledgement letter within the 14 day period and the rejection letter was sent 19 days outside the limit. The BPA website offers Public Advice including FAQs on appealing a ticket, wherein appears the following:

If I make an appeal to the operator, how long will it take to be resolved?

The BPA's Code of Practice is very clear that all complaints and appeals made to the operator must be dealt with promptly and efficiently. The operator is required to acknowledge your appeal within 14 days of receiving it, and they must respond with a full explanation of their investigation with 35 days.

I assume that “with” in the last sentence should read “within”. The strong use of the imperative in 22.8 and the FAQ must mean that the BPA require operators to take this seriously, and I consider it a major breach of the Code by CPM.

Section 4.1 requires all AOS members to “sign a declaration agreeing to keep to the Code and its principles”, while section 7.1 states that the contract with the landowner “must say that the landowner requires you to keep to the Code of Practice”. The BPA is also required to carry out regular audits of its members’ operations to ensure compliance. Nevertheless CPM is guilty of material breaches as demonstrated in above.
Conclusion
Based on the foregoing, I request POPLA to uphold my appeal against the PCN issued by CPM.

Yours faithfully,

Enclosed please find copies of:
CPM’s formal demand
Registered keeper’s appeal to CPM with proof of posting
CPM’s rejection letter
A photograph of CPM signage sited in the road but not at the entrance
A photograph evidencing the closure of the station car park necessitating the brief stop in the area

zeelinski

Does anybody seem to under stand that you are permitted to stop on a double yellow line to unload or load (which takes 5mins)
Id just state that.

EDIT: if there was no clear sign on the entrance, it shouldn't be valid, they must display a large board with it on at entrance

Mr.Spock

I'm surprised to get only one comment to my POPLA appeal draft. Thanks Z for yours. I guess everybody is far too busy enjoying the good weather:) I'm keen to send it off asap so any further comments/corrections/suggestions welcome to ensure Forum's 100% success rate with POPLA.
Although CPM won't be surprised an appeal is being made to POPLA is it sensible/necessary to advise them that is happening so they don't chase me when they don't get payment within 28 days? Not sure how long POPLA take...

Redx

most people who respond are on holiday, as its the school holidays (especially coupon-mad), plus its not mandatory for them to sit on their computers all the time replying on here , or checking on here whilst on holiday , hence the example drafts

if you think its good to go and you have covered the main points, submit it

otherwise wait to see if anyone else has a view on your appeal

as for popla , they take 5 to 8 weeks on average , its not a fast process and if CPM or anyone else chases you when you are appealing to popla its a BPA code breach I believe , might not stop them doing it but it is what it is so live with it

from start to finish these things tend to take say 4 to 6 months overall