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PCN - Sportspace Hemel - CEL
mattwallisuk
Posts: 438 Forumite
Hello
Have read the newbie thread.
Received a PCN from CEL on 06/05/2014 for parking at Sportspace Gym which offers free parking for bonified users. I am a member and was playing badminton on a booked court.
I sent my appeal before finding this forum, it was rejected.
I now have a POPLA code and intended to send the following, based on a template as recommended, but could do with someone checking it for me as I really wasn't sure which points to use and which template was most valid:
============================================
As the registered keeper, I would like to appeal this notice on the following grounds:
1 The Charge not a genuine pre-estimate of loss
2. No standing to pursue charges in the courts nor to make contracts with drivers
3. No Keeper liability - the NTK is not compliant with the requirements of POFA2012
4. Signage incapable of being read in the dark - no contract with driver
5. The driver was a bona fide authorised user of the free parking facility
6. Unreasonable & Unfair Charge - a penalty that cannot be recovered
1. The Charge not a genuine pre-estimate of loss
The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. I put Civil Enforcement to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated. The Notice to Keeper letter refers to 'breach of contract' so the charge must be a genuine pre-estimate of loss - and I contend this charge certainly is not based on any such calculation.
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 by a driver who was fully authorised to be parked at that site.
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 PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this alleged parking event and the operator should make the terms of proving the car is 'exempt', much clearer to the onsite staff and to drivers in order to mitigate their alleged losses and to avoid genuine customers being wrongly ticketed.
2. No standing to pursue charges in the courts nor to make contracts with drivers
CEL have no standing as they are an agent, not the landowner. They also have no BPA-compliant landowner contract containing wording specifically assigning them any rights to form contracts with drivers in their own name, nor to pursue these charges in their own name in the Courts.
I put Civil Enforcement to strict proof of the above in the form of their unredacted contract. Even if a basic site agreement is produced and mentions PCNs, 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 CEL and their client, containing nothing that could impact on a third party customer. Also the contract must be with the landowner - not a managing agent nor retailer nor any facility on site which is not the landholder - and the contract must comply with paragraph 7 of the BPA CoP. Such a contract must show that this contravention can result in this charge at this car park and that CEL can form contracts with drivers in their own right and have the assignment of rights to enforce the matter in court in their name. A witness statement or site agreement will not suffice as evidence as these are generally pre-signed photocopies wholly unrelated to the contract detail and signed off by a person who may never have seen the contract at all. I insist that the whole contract is required to be produced, in order to ensure whether it is with the actual landowner, whether money changes hands which must be factored into the sum charged, and to see all terms and conditions, restrictions, charges, grace period and the locus standi of this operator.
3. No Keeper liability - the NTK is not compliant with the requirements of POFA2012
The Notice to Keeper is not compliant with POFA 2012, Schedule 4 due to these omissions:
''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made.''
Where paragraph 9 requires certain wording, it is omitted - except a small amended sentence on the payment slip (which has been found in Council PATAS appeals, not to count as the 'PCN' because it is a separate section, designed to be removed). Also, as keeper I cannot be expected to guess the 'circumstances in which the requirement to pay...arose' because the charge is stated to be based on 'payment not made in accordance with terms displayed on signage'. This so-called outstanding 'payment' is not quantified and the signs do not support that contention (see point 4). There is no payment due for a car parked from 7pm for less than 2 hours and the signs also allow a 10 minutes grace period before charges arise. No fee was due so the NTK misstates the alleged contravention and fails to meet the strict requirements of POFA2012..
POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. ''Where a Notice is to be relied upon to establish liability ... it must, as with any statutory provision, comply with the Act.'' As the Notice was not compliant with the Act due to the many omissions of statutory wording, it was not properly given and so there is no keeper liability.
4. Signage incapable of being read in the dark - no contract with driver
The sign at the entrance to the car park is multi-coloured, non-reflective, unlit and positioned high up on a pole. The sign was not seen by the driver and would have been invisible in the dark, regardless of which side of the road the entrance of the car park is approached from. At 7pm, the car park was shrouded in darkness, as is shown from CEL's own evidence photo, and the sign was far too high to even be picked out by car headlights.
The BPA CoP at Appendix B sets out strict requirements for entrance signage, including “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead” and “There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision. Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material...''
In addition, the terms & conditions are in particularly small font compared with the offer to park from 7pm for 2 hours for free. And the sign provides for 10 minutes grace by which any payment has to be made - and yet no grace period was allowed to this driver (see point 5 below). The sign's wording is misleading and where there is an unclear or ambiguous contract term, the doctrine of contra proferentem - giving the benefit of any doubt in favour of the party upon whom the contract was foisted - applies. It is up to the company to ensure their terms are clear and unambiguous, otherwise any ambiguity must be interpreted in the favour of the consumer.
5. The driver was a bona fide authorised user of the free parking facility
The driver was a bona fide authorised user of the free parking facility and a member at Sportspace using the facilities at the time. Supporting evidence can be provided if required.
6. Unreasonable & Unfair Contract Terms - a penalty that cannot be recovered
The terms that the Operator in this case are alleging gave rise to a contract were not reasonable, not individually negotiated and caused a significant imbalance to my potential detriment. There is no contract between the Operator & motorist but even if POPLA believes there was likely to be a contract then it is unfair and not recoverable.
It is unreasonable and an unfair contract term, to attempt to enforce charges immediately (before the car is even parked) in a car park with a 10 minute grace period advertised in the largest font on the sign. It is unreasonable and an unfair contract term, to enforce a charge where the signs are unlit and the actual t&cs, including the risk of a 'PCN' and the amount payable for breach, is unreadable. It is unreasonable and an unfair contract term, to enforce a charge alleging a car arrived at the entrance 3 minutes before 7pm, when any ANPR system will have a manufacturer's advised % failure rate stated within the user manual and there is no proof that the ANPR remote clock was correct.
This charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:
‘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.’
In the Unfair Terms in Consumer Contracts Regulations 1999:-
''5.—(1) 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 Office of Fair Trading, Unfair Contract Terms Guidance:
Group 18(a): Allowing the supplier to impose unfair financial burdens
''18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However... a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.''
It has recently been found by a Senior Judge in the appeal court that CEL's signs are not clear and transparent and their charges represent a penalty which is not recoverable. This was in 21/02/2014 (original case at Watford court): 3YK50188 (AP476) CIVIL ENFORCEMENT v McCafferty on Appeal at Luton County Court. I contend that this charge is also not a recoverable sum.
I put CEL to strict proof regarding all of the above contentions and if they do not address any point, then it is deemed accepted.
Yours faithfully
=============================
I didn't change all that much. removed a point about ANPR accuracy/calibration and added the point about bonified user.
Also this was at 17:30 in the evening, so the signs were clear (but I did manage to miss them
) so not sure about leaving signage in?
Am I on the right track, good to go, or do I need to change a lot?
Thanks for your help....
Have read the newbie thread.
Received a PCN from CEL on 06/05/2014 for parking at Sportspace Gym which offers free parking for bonified users. I am a member and was playing badminton on a booked court.
I sent my appeal before finding this forum, it was rejected.
I now have a POPLA code and intended to send the following, based on a template as recommended, but could do with someone checking it for me as I really wasn't sure which points to use and which template was most valid:
============================================
As the registered keeper, I would like to appeal this notice on the following grounds:
1 The Charge not a genuine pre-estimate of loss
2. No standing to pursue charges in the courts nor to make contracts with drivers
3. No Keeper liability - the NTK is not compliant with the requirements of POFA2012
4. Signage incapable of being read in the dark - no contract with driver
5. The driver was a bona fide authorised user of the free parking facility
6. Unreasonable & Unfair Charge - a penalty that cannot be recovered
1. The Charge not a genuine pre-estimate of loss
The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. I put Civil Enforcement to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated. The Notice to Keeper letter refers to 'breach of contract' so the charge must be a genuine pre-estimate of loss - and I contend this charge certainly is not based on any such calculation.
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 by a driver who was fully authorised to be parked at that site.
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 PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this alleged parking event and the operator should make the terms of proving the car is 'exempt', much clearer to the onsite staff and to drivers in order to mitigate their alleged losses and to avoid genuine customers being wrongly ticketed.
2. No standing to pursue charges in the courts nor to make contracts with drivers
CEL have no standing as they are an agent, not the landowner. They also have no BPA-compliant landowner contract containing wording specifically assigning them any rights to form contracts with drivers in their own name, nor to pursue these charges in their own name in the Courts.
I put Civil Enforcement to strict proof of the above in the form of their unredacted contract. Even if a basic site agreement is produced and mentions PCNs, 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 CEL and their client, containing nothing that could impact on a third party customer. Also the contract must be with the landowner - not a managing agent nor retailer nor any facility on site which is not the landholder - and the contract must comply with paragraph 7 of the BPA CoP. Such a contract must show that this contravention can result in this charge at this car park and that CEL can form contracts with drivers in their own right and have the assignment of rights to enforce the matter in court in their name. A witness statement or site agreement will not suffice as evidence as these are generally pre-signed photocopies wholly unrelated to the contract detail and signed off by a person who may never have seen the contract at all. I insist that the whole contract is required to be produced, in order to ensure whether it is with the actual landowner, whether money changes hands which must be factored into the sum charged, and to see all terms and conditions, restrictions, charges, grace period and the locus standi of this operator.
3. No Keeper liability - the NTK is not compliant with the requirements of POFA2012
The Notice to Keeper is not compliant with POFA 2012, Schedule 4 due to these omissions:
''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made.''
Where paragraph 9 requires certain wording, it is omitted - except a small amended sentence on the payment slip (which has been found in Council PATAS appeals, not to count as the 'PCN' because it is a separate section, designed to be removed). Also, as keeper I cannot be expected to guess the 'circumstances in which the requirement to pay...arose' because the charge is stated to be based on 'payment not made in accordance with terms displayed on signage'. This so-called outstanding 'payment' is not quantified and the signs do not support that contention (see point 4). There is no payment due for a car parked from 7pm for less than 2 hours and the signs also allow a 10 minutes grace period before charges arise. No fee was due so the NTK misstates the alleged contravention and fails to meet the strict requirements of POFA2012..
POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. ''Where a Notice is to be relied upon to establish liability ... it must, as with any statutory provision, comply with the Act.'' As the Notice was not compliant with the Act due to the many omissions of statutory wording, it was not properly given and so there is no keeper liability.
4. Signage incapable of being read in the dark - no contract with driver
The sign at the entrance to the car park is multi-coloured, non-reflective, unlit and positioned high up on a pole. The sign was not seen by the driver and would have been invisible in the dark, regardless of which side of the road the entrance of the car park is approached from. At 7pm, the car park was shrouded in darkness, as is shown from CEL's own evidence photo, and the sign was far too high to even be picked out by car headlights.
The BPA CoP at Appendix B sets out strict requirements for entrance signage, including “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead” and “There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision. Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material...''
In addition, the terms & conditions are in particularly small font compared with the offer to park from 7pm for 2 hours for free. And the sign provides for 10 minutes grace by which any payment has to be made - and yet no grace period was allowed to this driver (see point 5 below). The sign's wording is misleading and where there is an unclear or ambiguous contract term, the doctrine of contra proferentem - giving the benefit of any doubt in favour of the party upon whom the contract was foisted - applies. It is up to the company to ensure their terms are clear and unambiguous, otherwise any ambiguity must be interpreted in the favour of the consumer.
5. The driver was a bona fide authorised user of the free parking facility
The driver was a bona fide authorised user of the free parking facility and a member at Sportspace using the facilities at the time. Supporting evidence can be provided if required.
6. Unreasonable & Unfair Contract Terms - a penalty that cannot be recovered
The terms that the Operator in this case are alleging gave rise to a contract were not reasonable, not individually negotiated and caused a significant imbalance to my potential detriment. There is no contract between the Operator & motorist but even if POPLA believes there was likely to be a contract then it is unfair and not recoverable.
It is unreasonable and an unfair contract term, to attempt to enforce charges immediately (before the car is even parked) in a car park with a 10 minute grace period advertised in the largest font on the sign. It is unreasonable and an unfair contract term, to enforce a charge where the signs are unlit and the actual t&cs, including the risk of a 'PCN' and the amount payable for breach, is unreadable. It is unreasonable and an unfair contract term, to enforce a charge alleging a car arrived at the entrance 3 minutes before 7pm, when any ANPR system will have a manufacturer's advised % failure rate stated within the user manual and there is no proof that the ANPR remote clock was correct.
This charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:
‘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.’
In the Unfair Terms in Consumer Contracts Regulations 1999:-
''5.—(1) 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 Office of Fair Trading, Unfair Contract Terms Guidance:
Group 18(a): Allowing the supplier to impose unfair financial burdens
''18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However... a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.''
It has recently been found by a Senior Judge in the appeal court that CEL's signs are not clear and transparent and their charges represent a penalty which is not recoverable. This was in 21/02/2014 (original case at Watford court): 3YK50188 (AP476) CIVIL ENFORCEMENT v McCafferty on Appeal at Luton County Court. I contend that this charge is also not a recoverable sum.
I put CEL to strict proof regarding all of the above contentions and if they do not address any point, then it is deemed accepted.
Yours faithfully
=============================
I didn't change all that much. removed a point about ANPR accuracy/calibration and added the point about bonified user.
Also this was at 17:30 in the evening, so the signs were clear (but I did manage to miss them
) so not sure about leaving signage in?Am I on the right track, good to go, or do I need to change a lot?
Thanks for your help....
The Head Honcho (does very little work)
0
Comments
-
Also not sure about point 3? I don't really understand it and not sure if its applicable on a "free parking" situation where I just forgot to register my number plate?The Head Honcho (does very little work)0
-
If you go to the newbies thread and search on civil enforcement you'll find that Coupon-mad says POFA (or lack thereof) is relevant to Civil Enforcement appeals. So just leave in point 3. On this forum you treat anything Coupon-Mad says as gold. She really knows her stuff.New members, please refer to "sticky" threads that are alwasys "stuck" at the top of this forum0
-
Point 3 does apply to free car parks. POFA 2012 includes the PPC's fake fines in the definition of "charges".
Or does it? POFA 2012 Schedule 4 reads thus:
“parking charge”—
(a)in the case of a relevant obligation arising under the terms of a relevant contract, means a sum in the nature of a fee or charge, and
(b)in the case of a relevant obligation arising as a result of a trespass or other tort, means a sum in the nature of damages
This seems to me to draw a clear distinction between "a fee or a charge" on the one hand, and "damages" on the other hand. And where there is (purportedly) a contract in place, then a "parking charge" within the meaning of POFA 2012 means only "a fee or a charge", not damages. Damages are only relevant in the case of trespass, which is something that no PPC ever alleges (except ANPR Ltd., but they're just thick).
So, according to my reading, a registered keeper cannot be held liable for damages arising from breach of contract.
As far as I know this has never been tested either at PoPLA or in court. Even the Prankster's admirable defences don't include this point.Je suis Charlie.0 -
I have included that very point above as a single grounds, in a POPLA defence currently in...thanks to a volunteer here who was keen to try it! No outcome yet.
But in fact that's not what point #3 of that POPLA appeal is on about. It's just saying 'the NTK doesn't have the wording needed in paragraph 9 of Schedule 4 and so there's no keeper liability'!PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Excellent, I look forward to hearing the outcome of that one! And kudos to the volunteer for sticking his/her neck out on this!Je suis Charlie.0
-
So should I go ahead with what I have posted above for my POPLA?
Thanks for comments so far, so helpful!The Head Honcho (does very little work)0 -
bump bump ...
The Head Honcho (does very little work)0 -
*bump*
Could really do with someone in the know checking my pasted POPLA appeal and letting me know if its good enough to go?
I'm off on honeymoon in 48 hours and need to have submitted this
Thanks in advance...The Head Honcho (does very little work)0 -
It's fine, submit it, tick 3 out of 4 appeal grounds (just not 'stolen car') and have a happy Honeymoon!PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Coupon-mad wrote: »It's fine, submit it, tick 3 out of 4 appeal grounds (just not 'stolen car') and have a happy Honeymoon!
Thank you, submitted and I'll let you all know how it goes :beer:The Head Honcho (does very little work)0
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