UK CPM Parking charge notice for parking in our own space with no permit displayed

Coupon-mad

I have downloaded a copy of the POPLA template to fill in and send off to them.

You mean you downloaded a POPLA form? You don't need to do that at all, as the POPLA website tells you. Why post it, no need? And we haven't seen your draft yet. I assume you have found 'How to win at POPLA' in post #3 of the Newbies thread and also have searched for 'UKCPM POPLA' to find other recent efforts to crib from?

knightrider14

Yes I've had a good look through as you've said and have based my letter strongly on the template for UKCPM in post #4. I haven't changed a huge amount as it applies fairly well to my case, however I have added point 4 but I'm not sure if I can add this or if this is worded in the right way. Also point no.2 "Contract with the landowner" I don't know what there status is I think the managing agent hired them and we (lease holders in the flat) were not consulted and did not agree to it.

Finally I'm not sure how to get in the fact that the space is ours and therefore we shouldn't be required to put a permit on our vehicle.

Draft of letter as follows:-

Dear POPLA Assesor,

Re ********* parking charge notice ********
POPLA ref **********

I am the registered keeper and I wish to appeal this charge on the following grounds;

1) No Genuine Pre Estimate of Loss
2) Contract with Landowner
3) Inadequate signage
4) CPM did not comply to the BPA code of practice in regards to responding to my appeal

1) a) The Charge is not a contractual fee – it is a disguised breach

The Operator has attempted to avoid the necessity of having to justify a pre estimate of loss by stating that this is a contractually agreed fee on their signage. However on both the parking charge notice (which is described as exactly that, NOT an invoice for an agreed fee) and the rejection letter to my appeal they state that the charge is for having "breached" the terms and conditions of parking. In addition, the wording on their sign also states that "unauthorised parking may result in your vehicle receiving a parking charge notice".

The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be consideration, it would have to mean that permission to park without a permit was given providing a fee was paid. Clearly permission to "park in breach" cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.

I would like to highlight a similar appeal against CPM where POPLA assessor Marina Kapour found that

"The charge must either be for damages as submitted by the Appellant, or for consideration - the price paid for the 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 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".

I would also highlight POPLA appeal reference 9663053967 where an initially refused appeal against the same Operator who again, made the same attempt to describe the charge as a contractually agreed fee on their signage was allowed by the Lead Adjudicator. It was found that the charge was a penalty and as such was not a genuine pre estimate of loss. I contend that the same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee but is a disguised breach and must be shown to be a genuine pre estimate of loss to be enforceable.

b) The Charge is Not a Genuine Pre Estimate of Loss

The charge of £100 is being sought for an alleged breach of the parking terms namely “parking without displaying a valid permit” consequently I contend, and the BPA code of practice states, that a charge for breach must be based on the genuine pre estimate of loss.

The Office of Fair Trading has stated to the BPA 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.

On the day in question, a permit was held, there was no damage nor obstruction caused (nor is any being alleged) and I therefore contend there was no loss caused to either the Operator, or the landowner, by any alleged breach.

In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated that a stipulation "will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach" and "there is an assumption that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

As the charge in this case is the same lump sum whether the vehicle is parked for 10 minutes or for 24 hours and the same amount is charged for any alleged contravention, it is clear that this is punitive and that no consideration has been given to calculating a genuine pre estimate of loss in this case.

In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred to either the Operator or to the Landowner.

I therefore require the Operator to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach.
Operational business costs cannot possibly flow as a direct result of any breach as the operator would be in the same position whether or not any breaches occur.

I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.

The operator will no doubt state that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.

This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier - there was no initial loss.

Christopher Adamson stated in a POPLA appeal against VCS Ltd 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 reasonable 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. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified".

In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said:

"the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".

The same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can be neither be commercially justified or proved to be a genuine pre estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.

2) Contract with Landowner

The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary or agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provide a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Even if a basic contract is produced that mentions parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.

3) Inadequate signage

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.

It was extremely dark at the time of parking. 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...” These signs are not readable from any distance. The charges are clear from a distance but any other information is not clear. It is not clear in the dark either.


4) CPM did not comply to the BPA code of practice in regards to responding to my appeal

Point 37.3 of the BPA code of practice states that

“ 37.3 If you receive a challenge or appeal about the issue of a parking charge notice, you must stop work on processing the ticket immediately. You must not increase the charge until you have replied to the challenge. You must acknowledge or reply to the challenge within 14 days of receiving it. If at first you only acknowledge the challenge or appeal, you must accept or reject the challenge or appeal in writing within 35 days of receiving it. We may require you to show that you are keeping to these targets.”

No acknowledgement of the appeal was received and the letter rejecting my challenge wasn’t received until the 12/09/14 53 days after my appeal was sent on the 21/07/14.

knightrider14

Typo "Yes I've had a good look through as you've said and have based my letter strongly on the template for UKCPM in post #4"

meant to say #3

Also should I add the 'PE v Beavis' reference to my GPEOL point no. 1.

Dee140157

Always a good idea.

knightrider14

Sorry just adding that bit, have changed excel to UKCPM. One thing though the bit that says "...licence to put up signage and 'issue tickets' and they are known to be paid by their client..." I dont think UKCPM are paid by our managing agents they get their money from their "parking tickets" does this matter, should I take this bit out?

Coupon-mad

knightrider14 wrote: »

One thing though the bit that says "...licence to put up signage and 'issue tickets' and they are known to be paid by their client..." I dont think UKCPM are paid by our managing agents they get their money from their "parking tickets" does this matter, should I take this bit out?

Take it out - that's about Excel!

''Finally I'm not sure how to get in the fact that the space is ours and therefore we shouldn't be required to put a permit on our vehicle.''

Don't bother. You agreed to the permit scheme and didn't opt out. Also it won't win as a POPLA point.

The_Deep

Coupon-mad wrote: »

Take it out - that's about Excel!
''Finally I'm not sure how to get in the fact that the space is ours and therefore we shouldn't be required to put a permit on our vehicle.''


Don;t bother. You agreed to the permit scheme and didn;t opt out.

Did you in fact agree to it? I get the impression that you tried to get it altered but gave up when the MA gave you the run around.

I am not sure that by displaying their permit you agreed to the PPCs unfair T&Cs, I would think that a judge would need to apply a reasonability test.

knightrider14

Sorry this is a late response I have been away for a week. Am I ok to send the letter as above or rather upload it to POPLA's website?

No I didn't agree to it. It was applied. I tried to opt out or have it removed and was told that we couldn't do anything until all the flats were sold and then it would be reviewed. They have now all been sold and to be fair I haven't challenged since as I do feel the MA are doing exactly that and just giving me the run around. It took long enough to get the response above as it was.

Also in regards to taking out the bit about excel I'm sorry if I'm being a bit thick do you mean the whole lot or just the bit I quoted.

Finally I have obviously borrowed heavily from all your sources here will this work against me as I am basically re-sending a previous appeal with slight changes, what I mean is do I need to make mine more unique or am I ok to send as is?

Thanks again all

Umkomaas

Are you still in time to meet the POPLA deadline?

Send via the POPLA website portal. Just put a synopsis of your appeal (the bullet points at the top of your appeal would be a good start) with your indentifiers, including your POPLA verification code, in the portal dialogue box. Cross reference and attach your actual appeal in a Word document as there is a limit to the number of characters allowed in the dialogue box, and the formatting goes Pete Tong.

Tick 3 of the 4 reasons for submitting (not the 'stolen' one, for obvious reasons!).

knightrider14

Thanks Umkomaas, yes I'm still in time. I'm submitting my appeal today. I'll let you know how it all goes.