Parking Charge Notice

Mr.Spock

Please check my redraft. I have used KTM1974 appeal as approved by Couponmad for this as location/experience was the same. However there are some differences notably this parking event was in failing light not darkness and it would seem that CPM's rejection letter makes different points. Consequently I've had to change 2b. So if you could pay particular attention to this section to make sure I've got it right. I've also added a breach of COP as they were late in responding to my appeal plus a section about card payments as approved by Couponmad in another case.

Thanks.

For the attention of the POPLA Assessor

I wish to appeal PCN xxxxx issued to me by UK Car Park Management (hereinafter referred to as CPM)

My appeal against the PCN is based on the following grounds:

1. Signage was not compliant with BPA AOS Code of Practice

The following clauses of the Code deal with signage:

18.2 entrance signs, located at the entrance to the car park, must tell drivers that the car park is managed and that there are terms and conditions which they must be aware of. Entrance signs must meet minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and follow Department for Transport guidance. Industry-accepted sign designs and guidance on how to use the signs are in Appendix B.
18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are.
Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm

Appendix B sets out requirements for entrance signs and adds some clarification on the words “conspicuous and legible” and “easy to see”. The following extracts are relevant:

As well as the AOS logo, signs at the entrance to the parking area must clearly show the type of parking, and when and how any payment should be made. Whilst we consider it to be good practice that the landowner’s name is placed on the sign, we
understand that in some instances the owner may not wish to be mentioned.
If one of the following standard wordings applies you should use it. If not, you may alter the wording to fit the situation. Words in square brackets may be left out. There must be at least one item from Group 1, and no more than three which should appear
before and more prominently than text from Group 2.
If there are different payment requirements for blue badge holders, these should also be shown. The words ‘blue badge holders’ should generally be replaced by the blue badge symbol (exactly as shown in Traffic Signs Regulations guidance Document, not a local version).
Group 1
Pay and display [except/free for blue badge holders]
[x minutes/hours] free parking [for customers only]
Pay on exit
Pay [on foot/at machine] when leaving
Parking for customers
Group 2
Charges apply [after this]
Private land
See the notice [ in car park] for conditions
The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead. Any text on the sign not intended to be read from a moving vehicle should be of a much smaller size.

a). There is no entrance sign to the land and thus no warning that a driver is entering a managed parking area. A driver cannot therefore be expected to look for other signs, especially in failing light. I challenge CPM to provide photographic evidence of the existence of an entrance sign – please see photo 1 on the attachment below showing the entrance to the land which shows clearly the lack of any entrance sign.

b). The parking event took place in failing light on an evening when it was raining heavily. None of the signage in the area is lit. Furthermore none of the signs are visible in the driver’s eye line and at no time did the driver get out of the car. The first sign was so high that there was no chance a driver arriving would see them, let alone be able to read them at any distance. If you view CPM’s images, they show evidence of the poor weather conditions at the time.

CPM in their rejection letter have stated: “It is the driver’s responsibility to ensure correct parking is found before leaving the vehicle unattended within the restricted area.”
This statement is irrelevant if there is no entrance sign, and ignores the requirement for signage to be lit. Moreover, the vehicle was not unattended. Given the circumstances of failing light, no entrance sign, no lit signs, I would conversely suggest it would be most improbable that anyone would see any of their signs. The onus is on CPM to prove that the driver saw, read and accepted the terms of their extortionate “contract”.

In summary the signage at the site fails to meet the requirements for signage in the BPA Code of Practice section 18 and Appendix B, and I also argue that CPM fail to have established beyond doubt that the driver saw any signs at all when parking. Accordingly I request POPLA to uphold my appeal against the PCN.

2. The parking charge is neither a genuine fee to park nor a genuine pre-estimate of loss

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

19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. If it is more than the recommended amount in 19.5 and is not justified in advance, it could lead to an investigation by The Office of Fair Trading.

a). No contract exists. I discuss in b). below whether 19.5 or 19.6 applies in this case, but I must firstly state that there was no contract between the driver and CPM. The driver did not see any contractual information on any signs when entering the car park and stopping, and therefore at that time they had no idea that any restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied. There can thus be no breach of contract and no “contractually agreed sum”.

b). 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 also refers “to the fee”. The signage states “Unauthorised parking may result in your vehicle receiving a parking charge notice.”, “Terms of parking without permission - … you are contractually agreeing to pay a parking charge fee”, and “The following fees apply”.
Thus the rejection letter mentions both a breach of contract and a fee, but the signage wants to treat this as 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 are 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.

c). 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 have 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).

d). 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. I challenge CPM to provide evidence of the loss incurred, in the knowledge that CPM may only include losses consequential to the breach of parking terms and conditions and must exclude any of their costs of running the business. Note in CPM’s rejection letter they advise that the fee of £100 covers such things as attendant patrols, PCN processing, cost of motorists’ appeals, DVLA fees, ATA and ICO membership fees, all of which are clearly costs of running the business and not as they claim a genuine pre-estimate of loss.

3. 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 stopped but advise that “CPM holds a legal contract with the landowner to monitor all parking areas on their behalf. This therefore entitles our operative to issue parking charge notices to all vehicles found parked in clear breach of the restrictions as stated upon the signage within the area.” I question whether it does in fact give CPM the authority to issue PCNs and to pursue third parties for parking charges through the courts. I therefore require strict proof that CPM have 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.

4. 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 have blatantly disregarded this requirement as the brief time the vehicle was parked before receiving the PCN could not possibly have exceeded a reasonable ‘grace period’.
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 above.
CPM is guilty of material breaches as demonstrated in points 1 and 4 above, and there may be others evident when CPM’s evidence is presented.

5. Unfair Payment Charges

A charge of £1.50 for a debit card payment is a clear breach of recent legislation under the Consumer Rights (Payment Surcharges) Regulations 2012.

Conclusion

Based on the foregoing, I respectfully request POPLA to uphold my appeal against the PCN issued by CPM. I understand that I should receive the evidence pack from POPLA or CPM at least 7 days before the Appeal is heard, and that I will be given the opportunity to comment on the evidence provided by CPM prior to the hearing.

Yours faithfully

xxxxxxxx

NB Please also see the Attachment containing photographic evidence which forms an integral part of this Appeal

Photo 1 - Entrance to Waterfront Business Park with no evidence of warning signs
Photo 2 – Signage within the Waterfront Business Park as ringed in the photo in CPM’s rejection letter

Dee140157

As said before, Breaches of BPA code of practice are not considered at POPLA so don't expect anything to be done with these.

Your. GPEOL should include the Beavis rebuttal referred to in The sticky.

Point 5 is valid but more a complaint to BPA than a POPLA appeal point.

Not sure what else to suggest. Howe long have you got to send it off in? I can't put my finger on why I don't like this appeal, I just don't and if you have a few days it may be worth hoping someone else can make a better comment than I.

Unfortunately very very busy at the moment and haven't got the time to work out what I don't like.

Please don't take that harshly, it's just a gut feeling.

Mr.Spock

Thanks. Constructive criticism is always welcome. I'm amazed people find the time and enthusiasm to reply to all the posts. I've had CPM's rejection letter 2 weeks now so some time left. As mentioned in preamble I used format approved by CouponMad (in link provided by Unkomaas) for KTM1974 appeal (same place/same experience) but with some necessary changes. Do you know when CouponMad is back from hols?

Redx

checking her posts it says early august , so sometime in the next 15 days I would think

Mr.Spock

Coupon-Mad - Hope you had a good holiday. You've been missed. Would really appreciate it, if when you get a minute you could check out my 2nd POPLA draft posted 31/7. It's basically the same format you previously approved for KTM1974. Both PCNs were for Waterfront Business Park but it wasn't completely dark when I got mine. There also look to be some subtle differences in CPM's reasons for rejection. I guess we can't expect them to be consistent:)

Coupon-mad

It's too late in the night for me to comment now in detail but I would remove any reference to VCS v HMRC and try to weed out pretty much all the refs to the BPA Code of Practice - as Dee says they aren't POPLA winning points. So, your unclear signage point should focus on the fact 'no contract was formed', etc. Surely the Newbies thread post #3 'How to win at POPLA' link has a more recent UKCPM POPLA version you could crib from?

Mr.Spock

OK thanks and noted and I can redraft accordingly along with any other pointers you may have when you have more time. Please note I did crib a recent format (KTM1974) only approved on 13/7/14 so please help me understand what has changed in the last 2 weeks to make that format unacceptable?

Mr.Spock

As requested I've removed the breaches of COP, added the Beavis rebuttal and added no contract section. I'd be grateful for your comments.


For the attention of the POPLA Assessor

I wish to appeal PCN xxxxx issued to me by UK Car Park Management (hereinafter referred to as CPM)

I am the registered keeper and my appeal against the PCN is based on the following grounds:

1. Lack of signage and no contract made with the driver

There is no entrance sign to the land and thus no warning that a driver is entering a managed parking area. A driver cannot be expected to look for other signs. I challenge CPM to provide photographic evidence of the existence of an entrance sign – please see photo 1 showing the entrance to the land which shows the absence of any entrance sign. The parking event took place in failing light and heavy rain as shown in CPM’s photo evidence. None of CPM’s signage in the area itself is lit. Furthermore none of the signs are visible in the driver’s eye line and at no time did the driver get out of the car. The first sign was so high that there was no chance a driver arriving would see them, let alone be able to read them whilst still inside a car. In their rejection letter CPM have stated: “It is the driver’s responsibility to ensure correct parking is found before leaving the vehicle unattended within the restricted area.”
This statement is irrelevant if there is no entrance sign, and ignores the requirement for signage to be lit. Moreover, the vehicle was not unattended as evidenced by the photo in CPM’s rejection letter.
There was no agreement to pay. No consideration/acceptance flowed so no contract exists. Terms are only imported into a contract if they are clear and so prominent that the party ‘must’ have known of it and agreed it. The requirements of forming a contract, such as a meeting of minds, agreement, and certainty of terms were not satisfied. As a POPLA Assessor has stated in a previous adjudication, “Once an Appellant submits that 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.”
Given the circumstances of failing light, no entrance sign, no lit signs, I would suggest it would be most improbable that anyone would see any of their signs. The onus is on CPM to prove that the driver saw, read and accepted the terms of their “contract”.

2. The parking charge is neither a genuine fee to park nor a genuine pre-estimate of loss

Although the Operator states that the sum sought is a contractual term, the wording on the sign states ‘unauthorised parking may result in your vehicle receiving a PCN'. It is clear from this that breaching the specific conditions stated may result in a parking charge notice and therefore it appears that the amount sought is for those who are parked in breach. This amount would appear to represent liquidated damages which is compensation agreed in advance.

The charge must either be one for damages for breach or a fee paid for parking (i.e. consideration) - it cannot be both.
In order for the charge to be consideration, the parking charge must be paid in return for something, which in the case of this alleged event would mean the driver was given permission to park on double yellow lines providing he or she paid a fee, but clearly permission to park ‘in breach’ cannot be granted, and so I contend the parking charge cannot be a contractual price but is in fact a sum sought as damages.

I would like to highlight that in another similar appeal against a CPM ticket with similarly misleading signage, POPLA Assessor Marina Kapour found that:
“The charge must either be one for damages as submitted by the Appellant, or consideration - the price paid for parking - as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the maximum permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay, provided he or she pay the charge. Clearly, permission to park ‘in breach’ is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre-estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge, and so it cannot be consideration.”

Also as the signs were not lit and I am merely the keeper (not the driver) the terms cannot flow from the unlit/unseen sign but can only be interpreted from the Notice to Keeper - which again states the charge is for 'breach'. CPM must show it is a genuine pre-estimate of loss and I contend there was no loss.

It is clear from all of the above, and I assert, that this charge was actually issued for an alleged breach of the parking conditions and therefore the charge is in fact a sum sought as damages, consequently I put CPM to strict proof that the charge is a genuine pre-estimate of the loss caused by the parking breach but I contend there was no loss.

Note also that The Department for Transport guidelines state 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. 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 CPM’s rejection letter they advise that the fee of £100 covers such things as attendant patrols, PCN processing, cost of motorists’ appeals, DVLA fees, ATA and ICO membership fees, all of which are clearly costs of running the business and in direct contravention of Department for Transport guidelines, and not, as they claim, a genuine pre-estimate of loss.
Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.”

3. No authority to enforce charges

There is no assignment of rights to CPM to enable them to pursue PCNs in the courts in their own name or to form contracts with drivers. CPM by their own admission are not the landowner and I therefore require CPM to provide actual proof of their signed and dated contract with the landowner, including all the terms and restrictions and assignment of any rights in it. The contract must state that CPM can pursue drivers through the courts and show all requirements of 7.1 and 7.2 of the BPA CoP (without which there is no authority). This needs to be a full copy and not a basic ‘site agreement’ template sheet or a redacted contract.

4. Notice to Keeper – no Keeper liability

The Notice to Keeper fails to identify the ‘creditor’ and is therefore not compliant with paragraph 9(2)(h) of schedule 4 of the Protection of Freedom Act 2012. It could be CPM, UK Car Park Management Ltd., UK Car Park Management or the Landlord, all of which are mentioned on signs, letters and notices leading to uncertainty as to who the creditor might be. Alternatively, the creditor could be the owner or lessee of the land, or a managing agent or CPM’s client or another party. It is not for me to guess who the creditor is, but it is for the Operator to specifically “identify” the creditor with words to the effect “The creditor is….”. The Keeper is entitled to know the party with whom any purported contract was made. CPM have failed to do this and therefore have not fulfilled all the requirements necessary under POFA to allow it to attempt recovery of any charge from the Keeper.

5. Unfair terms – Unenforceable Disguised Penalty

The signage and the Notice to Keeper are ambiguous and contradictory. The PCN refers to a ‘contravention’ and the Notice to Keeper mentions ‘a breach of terms’ yet the unlit sign alleges a ‘contractual’ sum. If this were the case, there would be a payment mechanism and a VAT invoice yet there is none. This is therefore a disguised penalty and not a transparent contract. Terms must be clear otherwise under the doctrine of contra proferentem, the interpretation that favours the consumer applies.

The OFT on UTCCR 1999:

Group 18(a): unfair financial burdens
’18.1.3. Objections are less likely…. if a term is specific and transparent as to what must be paid and in what circumstances. A term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a ‘disguised penalty’, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.
6. Unfair Payment Charges
A charge of £1.50 for a debit card payment is a clear breach of recent legislation under the Consumer Rights (Payment Surcharges) Regulations 2012.

Conclusion

Based on the foregoing, I respectfully request POPLA to uphold my appeal against the PCN issued by CPM. I understand that I should receive the evidence pack from POPLA or CPM at least 7 days before the Appeal is heard, and that I will be given the opportunity to comment on the evidence provided by CPM prior to the hearing.

Yours faithfully

xxxxxxxx

NB Please also see the Attachment containing photographic evidence which forms an integral part of this Appeal

Photo 1 - Entrance to Waterfront Business Park with no evidence of warning signs
Photo 2 – Signage within the Waterfront Business Park as ringed in the photo in CPM’s rejection letter

Mr.Spock

Sorry to press but does anybody have any time to review my latest draft 6/8? I have to send it off this coming week and if there are still changes to be made I'd like to do it over w/end when I have some time. Thanks.

Dee140157

Much much better. A skim read now shows you have the main information in it. I would say it is good to go.