UKPC POPLA Appeal help appreciated

Coupon-mad

Here is that part of the wording, I did a search & found the one I wrote before:

https://forums.moneysavingexpert.com/discussion/comment/64613136#Comment_64613136

... but bear in mind that's only the no GPEOL paragraph so you need the other usual stuff from the templates under 'How to win at POPLA' in post #3 of the NEWBIES thread.

Dutch5773

A great link, thanks coupon-mad. And reading the rest of that thread it is so similar to my situation. I shall draft up a popla ready to send Monday. Thanks again.

Dutch5773

Thanks to all those that have given their advise. Here is my draft. Please point out any errors/omissions or plain silly things I may have done:

RE: POPLA ********

Parking Charge date: *****
Car Registration: *****
Parking Charge Number: **********
Issuing Company: *********
Date of appeal rejection letter from UKPC: *******

I am the keeper of this vehicle and this is my appeal.
On the above date, the quoted PCN was issued quoting “Parked in a permit space without displaying a valid permit”. This charge has been contested directly with UKPC and rejected with a valid POPLA code.
I contest the charge and request it is dismissed on the following grounds:
1. No Genuine Pre-estimate of loss
2. Lack of approved signage and unreasonable/unfair terms
3. Lack of standing/authority from landowner
4. Business rates

1) NO GENUINE PRE-ESTIMATE OF LOSS.
The demand for a payment of £90 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could possibly have been suffered by the Landowner or the Operator. A UKPC sign states that a PCN would be issued for a “failure to comply” with the terms of parking, which indicates that the parking charge represents damages for a breach of the parking contract. Accordingly, the parking charge must be a genuine pre-estimate of loss. UKPC has not provided any evidence as to how and why the parking charge is a genuine pre-estimate of loss. Therefore the parking charge is punitive and an unenforceable penalty charge.

I put UKPC to strict proof that that their charge represents a genuine pre-estimate of loss. To date UKPC have refused to provide me with a detailed breakdown of how the amount of the “charge” was calculated in the form of documented, specific evidence applicable to this car park and this alleged incident. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business For example, were no breach to have occurred then the cost of parking enforcement (for example, wages, uniforms, signage, office costs) would still have been the same.

UKPC have helped prove my point by effectively confirming that their £90 charge cannot possibly represent a genuine pre-estimate of any loss caused by the parking event. In their rejection letter with the POPLA code, UKPC have varied their 'loss' claim massively, from £90 down to an accepted sum' of £15. Failure to pay the reduced fee, or to appeal to POPLA, would see the “charge” return to the full amount of £90. UKPC must explain in their evidence for POPLA, how a loss amount apparently flowing from a specific parking incident can suddenly be slashed, then leap back to £90. I am also aware that UKPC's website recently removed a telling paragraph which stated 'we get all our revenue from our PCNs' as part of their marketing FAQs. However the truth of this 'revenue' statement will be shown in the unredacted contract with their client where it will show UKPC pay their clients a 'revenue share' of 10% (no loss there then!). I put UKPC to strict proof otherwise.

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 the Office of Fair Trading information to the BPA about parking charges: ''The OFT expressed the view that a parking charge will not automatically be recoverable, simply because it is stated to be a parking charge. It cannot be used to create a loss where none exists.” The BPA Code of Practice states: “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.

I put it to UKPC to prove that a loss has occurred at the time that this charge was levied and that the charge is a genuine pre-estimate of loss. I also request that careful consideration of UKPC’s own photographic evidence does indeed show that the car park in question was not full at this time or in any substantial use.

2) Lack of signage and Unreasonable/Unfair Terms

On review 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 UKPC to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. There is little 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''.

This PCN was raised in darkness at ****on a February morning during the time of the storms. At the time of the charge, both, visibility and the weather were poor.
I would also like to highlight the following points clearly seen on UKPC’s own photographic evidence:
• UKPC signage evidence is taken with the aid of a flash
• lighting conditions, as shown in the photos, are extremely low and all taken with the aid of a flash
• there are no UKPC signs seen in the location of the car at the time the charge was issued, nor can any signs be seen in the photo of the car in relation to the rest of the car park. The surrounding fence where valid signs could be mounted is clearly seen.
• The wording of any signs is of insufficient font size to be easily read from within a car.

3) Lack of standing/authority from landowner
UKPC 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 UKPC to strict proof of the contract terms with the actual landowner (not a lessee or agent). UKPC 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 UKPC are entitled to pursue these charges in their own right.
I require UKPC 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.

I would also contend that the lease/agreement the resident has overrides any attempt at a contract foisted upon them by a non-owner third party, especially when said resident holds a valid permit to park. I put it to UKPC to show evidence of such a contract with the landowner, to prove the resulting loss and to also make evident that their employee was NOT being unreasonable at this time.

4) Business Rates
As the car park is being used for the purpose of running a business by UKPC, which is entirely separate from any other business the car park services, and generates revenue and profit for UKPC, I do not believe that UKPC has declared the running of their business venture at this location to the Local Valuation Office and Local Authority for the purpose of the payment of Business Rates.

I put UKPC to strict proof that they have so registered the business they are operating at (***** ******, ********) car park with the Valuation Office and to provide proof that Business Rates are being paid to the Local Authority, or to provide proof or explanation of their exemption from such Business Rates.

In summary, I contend that it is wholly unreasonable to rely on signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by parking within a free car park and when said car park is not full. I put this UKPC to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

With consideration of the points raised, I therefore respectfully request that my appeal is upheld and the charge is dismissed in full and that UKPC cease all further actions in relation of said charge.

*************

Any further advice greatly received. Not so sure about point 4 but saw this in another post? Thanks again.

Guys_Dad

Point 4 ir totally irrelevant for POPLA purposes and smacks of scraping the barrel.

In view of the recent Cambridge verdict, I can't see how this bit helps, although we are only talking POPLA at this stage.

However the truth of this 'revenue' statement will be shown in the unredacted contract with their client where it will show UKPC pay their clients a 'revenue share' of 10% (no loss there then!). I put UKPC to strict proof otherwise.

Coupon-mad

I would just get rid of the business rates paragraph and submit the rest. I don't think the PE Cambridge case will affect a POPLA verdict v UKPC seeing as it was just a county court (flawed) decision like many others and may still yet be appealed (and wasn't even about UKPC).

Dutch5773

Once again thanks for all the help.

I shall submit my POPLA Appeal and let everyone know the outcome in due course.

Dutch5773

Right, a big thanks for the help. My appeal came back today in my favour. No reply to the appeal from the company that issued the charge so they have been instructed to cancel it.

Thanks again!

Coupon-mad

Yay, PSTITT! (Parking Scumbags Threw in The Towel!).

bod1467

Is that the new version of PSDSU?