parking charge notice vcs

pogofish

Do as you were advised in post two and have a good read of the Newbies Sticky - this outlines the procedure you need to follow now.

mozza1202

Still a bit stuck on how to use a popla appeal read post 2 in the newbie sticky when you put popla code in can go back an amend your appeal

Coupon-mad

Hmmm how about reading 'How to win at POPLA' in the sticky?!

mozza1202

Just read my pcn again an I thought it was with a apnr van but it says a mobile CCTV is their any difference with appeals

Redx

mozza1202 wrote: »

Just read my pcn again an I thought it was with a apnr van but it says a mobile CCTV is their any difference with appeals

probably the same thing , no difference in the appeal

mozza1202

hi would this be ok to use for my popla appeal any advice would be welcome

Dear POPLA,


I am the registered keeper & this is my appeal:

1) The Charge is not a genuine pre-estimate of

2) Lack of signage - no contract with driverloss

3) Lack of standing/authority from landowner

4) Non compliant Notice to Keeper - no keeper liability establishedunder POFA2 2012

5) Unreasonable/Unfair Terms





1) The Charge is not a genuine pre-estimate of loss
Their sign states the charge is for 'not fully complying with the conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park was not even half full, so if a tyre was indeed over a bay line (which is denied as I am the keeper and it is up to UKCPS to show as much) there was no loss of potential income in a free car park.

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.

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 UKCPS to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. There is no entrance sign, 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.

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''.

3) Lack of standing/authority from landowner
UKCPS has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put UKCPS to strict proof of the contract terms with the actual landowner (not a lessee or agent). UKCPS 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 UKCPS are entitled to pursue these charges in their own right.

I require UKCPS 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.

4) Non compliant Notice to Keeper - no keeper liability established under POFA2 2012
On the NTK, the 'period of parking' is not shown, only the time of issue of an alleged PCN. Also the NTK completely misinforms the rights of a registered keeper to appeal, alleging that the appeal time has 'elapsed' when it has not and wrongly restricting the keeper's options at that stage to appealing only if the vehicle was stolen. I have no hesitation is stating to POPLA that this is a lie that POPLA should report to the BPA. In addition, the wording makes this a non-compliant NTK under the POFA 2012, Schedule 4.

Schedule 4 para8(1): 'A notice which is to be relied on as a {NTK is given} if the following requirements are met. (2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.
(g)inform the keeper of any discount offered for prompt paymentand the arrangements for the resolution of disputes or complaints that are available'

The NTK is a nullity so no keeper liability exists.

5) Unreasonable/Unfair Terms
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.

An unlit sign of terms placed to high to read, is far from 'transparent'.


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 and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

Jim_AFCB

General advice is usually to summarise the bullet points at the top of the appeal before going into detail under each heading,

i.e.
1) The Charge is not a genuine pre-estimate of loss
2) Lack of signage - no contract with driver
3) Lack of standing/authority from landowner
etc. etc.

to make it easy for a POPLA assessor to quickly see what points are in the appeal

As for the detail, I'll leave it to someone more expert than myself to pick over.

Coupon-mad

This is the problem with templates (the work of the devil IMHO and they only appear in the newbies thread because so many posters say they can't be arsed or manage to write a letter themselves because they didn't bother to go to school and were too busy smoking fags and watching TOWIE or whatever!). Rant over...


So, you have to pick an appropriate one and you have to READ it! You have used a UKPCS template and copied it without checking it. Clearly full of not applicable stuff such as:

'' I put UKCPS to strict proof otherwise'' (you don't appear to have even changed any UKCPS to VCS!). But don't bother because:

''Also the NTK completely misinforms the rights of a registered keeper to appeal, alleging that the appeal time has 'elapsed' when it has not and wrongly restricting the keeper's options at that stage to appealing only if the vehicle was stolen''

OK we know you are a newbie to all this but you have the NTK there and you can and should be checking such things - it is simple to spot this wording about 'stolen car' and 'elapsed' does NOT appeal on your NTK. So why say it to POPLA?

Why don't you simply adapt a VCS Airport one which talks about secret camera vans and all. Most of it would be appropriate except the bylaws point (unless this International Business Park was on Airport land). There are two perfectly useable VCS examples in post #3 of the Newbies thread after all.

mozza1202

Dear POPLA,


I am the registered keeper & this is my appeal:

1) The Charge is not a genuine pre-estimate of loss

2) Lack of signage - no contract with driver

3) Lack of standing/authority from landowner



1)The amount demanded is a penalty and not a Genuine Pre-estimate of loss.

Theparking charge does not represent a genuine pre-estimate of loss and thereforeis unfair as defined in the Unfair Terms in Consumer Contracts Regulations1999. Parking charges cannot include business costs which would occur whetheror not the alleged contravention took place. The amount claimed is excessive andis being enforced as a penalty for allegedly stopping. As VCS are alleging a'failure to comply' yet cannot show this is a genuine pre-estimate of loss,they have breached the BPA Code of Practice, which renders this chargeunenforceable.


POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latesteffort at a loss statement - their latest attempt to get around POPLA - that:

'I am not minded to accept that the charge in this case is commerciallyjustified. In each case that I have seen from the higher courts, includingthose presented here by the Operator, it is made clear that a charge cannot becommercially justified where the dominant purpose of the charge is to deter theother party from breach. This is most clearly stated in Lordsvale Finance Plc vBank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine BesFilmcilik Ve Yapimcilik & Anor v United International Pictures & Ors[2003] EWHC Civ 1669 when Coleman J states a clause should not be struck downas a penalty, “if the increase could in the circumstances be explained ascommercially justifiable, provided always that its dominant purpose was not todeter 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 theywould have been in had the contract been performed. It also seems that courtshave been unwilling to allow clauses designed to deter breach as thisundermines the binding nature of the initial promise made. Whilst the courtshave reasonably moved away from a strict interpretation of what constitutes agenuine pre-estimate of loss, recognising that in complex commercial situationsan accurate pre-estimate will not always be possible, nevertheless it remainsthat a charge for damages must be compensatory in nature rather than punitive.'



2) No contract with driver.
If a contract is to be formed, upon entering the site a driver must be able to read, understand and agree to the terms and conditions. A driver could not stop in order to read the signs as they enter the road as they by doing so they would block the junction. In anycase, as VCS are only an agent working for the owner, mere signs do not help them to form a contract. In this instance, there was no contract formed what so ever, no consideration was capable of being offered to the driver, saw no pertinent signs nor accepted these terms whilst driving.

3) No landowner contract nor legal standing to form contracts or charge drivers
As VCS are not the owners of this land and as such they cannot form a contract with the driver, I wish VCS to provide me with a full un-redacted copy of theircontract with the landowner which allows them to form such a contract. Awitness statement as to the existence of such a contract is not sufficient. Ibelieve there is no contract with the landowner that gives VCS the legalstanding to levy these charges nor pursue them in the courts in their own nameas creditor. This was shown to be the case by District Judge McIlwaine in VCSv Ibbotson, Case No 1SE09849 16.5.2012 (transcript in the public domain). Soas regards the strict requirements regarding the scope and wording of landownercontracts, VCS have breached the BPA Code of Practice section 7 and failed to demonstrate their legal standing, which renders this charge unenforceable.

Coupon-mad

You will need a paragraph each to explain your point #4 and point #5 of course.

In point #2 I would not use VCS -v-HMRC 2012 as it's not relevant.

And beef up some of your points like the no GPEOL (point #1) argument in maninwhitecoat's thread. No links, I never do that as it doesn't help you use the forum. His thread is near yours right now page one or two, and is just the sort of thing you should be looking at (other recent threads like yours).