Notice to owner

Redx

in that case take SPECIAL NOTE of my previous post regarding this as by snail mail you are on the borderline of failure already

I would be ensuring this is lodged online on the popla website by next monday at the very latest , checking for an acknowledgement by email from london-councils once lodged, especially checking the junk mail folder

kop1te

Will try and lodge the appeal on line tomorrow at the latest.

kop1te

Hopefully this is an improvement?


Dear POPLA Assessor,

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

I am the registered keeper and I wish to appeal this charge on the followinggrounds:

1. No Genuine Pre Estimate of Loss
2. Contract with Landowner
3. Non compliant notice to keeper


1. a) The Charge is Not a Genuine Pre Estimate of Loss
The charge of £140 is being sought for an alleged breach of the parking termsnamely “A valid Pay & Display ticket was not clearly on display”consequently I contend, and the BPA code of practice states, that a charge forbreach 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 notautomatically 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 there was neither damage nor obstruction caused (nor isany being alleged) and I therefore contend there was no loss caused to eitherthe Operator, or the landowner, by any alleged breach.

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

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

I therefore require the Operator to submit a full breakdown of their genuinepre estimate of loss to show how this loss was calculated in this particularparking area and for this particular alleged breach. Operational business costscannot possibly flow as a direct result of any breach as the operator would bein 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 exceedthe cost to the Landowner during the time the Motorist is parked there andremind them that the amount in this case is nothing.

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

This initial loss is fundamental and without it, costs incurred subsequentlycannot be reasonably claimed to have been caused by the breach and as I havestated 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 thatthe aim is to put the parties in the position they would have been in had thecontract been performed. It also seems that courts have been unwilling to allowclauses designed to deter breach as this undermines the binding nature of theinitial promise made. Whilst the courts have reasonably moved away from astrict interpretation of what constitutes a genuine pre estimate of loss,recognising that in complex commercial situations an accurate pre estimate willnot always be possible, nevertheless it remains that a charge for damages mustbe compensatory in nature rather than punitive. In this case it is clear thatthe dominant purpose of the charge is to deter parking for longer than the timepaid for. Accordingly, I am not satisfied that the charge can be commerciallyjustified".

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

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

The same applies in my case, and POPLA must show consistency where similararguments are raised by appellants. The amount of £140 demanded is punitive andunreasonable, is not a contractual fee and can neither be commerciallyjustified or proved to be a genuine pre estimate of loss and I respectfullyrequest that my appeal be upheld and the charge dismissed.

The signage in the car parkindicates a Parking Charge of £85 for non compliance, yet the notice to ownergives a parking charge of £140.


2. Contract with Landowner
The Operator does not own the land in question and have provided no evidencethat they are lawfully entitled to demand money from a Driver or Keeper. Theyown neither proprietary nor agency rights and hold no title or share of theland. I do not believe that they have the necessary legal capacity to enterinto a contract with a Driver of a vehicle parking there or to allege a breachof contract in their own name as creditor. I believe that at best they may holda site agreement limited to issuing tickets and as such I require that theyprovide 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 mustspecifically grant the Operator the right to pursue parking charges in theirown name as creditor, please note that a witness statement such as a signedletter to the effect that such a contract exists will be insufficient toprovide all the required information and therefore be unsatisfactory for thefollowing reasons:

a) Some parking companies have provided 'witness statements' instead of therelevant contract. There is no proof that the alleged signatory has ever seenthe contract or that they are employed by the Landowner. Such a statement wouldnot show whether any payment has been made to the Operator which wouldobviously affect any 'loss' calculations. Furthermore it would not serve toprovide proof that the contract includes the necessary authority required bythe BPA Code of Practice to allow the Operator to pursue charges in their ownname as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'notvalid evidence'. If the Operator provides a witness statement merely confirmingthe existence of a contract but no unredacted copy of that contract then POPLAshould rule this evidence invalid in the interests of fairness and consistency.

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

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



3) Non compliant Notice toKeeper - no keeper liability established under POFA 2012

The Notice to Keeper fails to state the period of parking,only the time of the issue of the alleged notice, and also fails to inform thekeeper of the arrangements for the resolution of disputes or complaints thatare available.

In addition, the wording makes this a non-compliant NTKunder the POFA 2012, Schedule 4:

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

The NTK is a nullity so no keeper liability exists.
In addition the notice to keeper was sent outside the allotted56 day time frame
screen ticket issued 18.03.2014
NTK issued 03.06.2014
POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeperis fundamental to establishing liability for a parking charge. Where a Noticeis to be relied upon to establish liability it must, as with any statutoryprovision, comply with the Act.
As the Notice was not compliant with the Act, it was not properly issued and asregistered keeper I cannot be held liable.

kop1te

Oh and maybe

4) Misleading Signs
Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of it and agreed. The terms are misleading, with wording that dresses up the charge as a 'contractual' fee. It is not; see point 1 a).


[FONT=&quot]There was no agreement to pay. No consideration/acceptance flowed - so no contract exists. [/FONT][FONT=&quot]

[/FONT]
[FONT=&quot]The sign and the Notice to Keeper are ambiguous and contradictory. On the Notice to Keeper the sum is stated as a 'contravention' for 'breaching the terms and conditions' yet the sign misleadingly alleges a 'contractual' sum. If so, there would be a payment mechanism and a VAT invoice. There is none. This is not a transparent contract and is a disguised penalty. Terms must be clear otherwise under the doctrine of contra proferentem, the interpretation that favours the consumer applies.[/FONT][FONT=&quot]

[/FONT]
[FONT=&quot]In conclusion, I request that my appeal be upheld and the charge dismissed.[/FONT]

kop1te

I won't pretend to understand everything I've copied and pasted so any comments/critique are welcome. Thanks

Redx

you should definitely be including signage as generally they are not compliant with the BPA CoP and in any case if you query signage they have to defend it by proving their case and signage are correct, they may issue the wrong signs, wrong map, all kinds of errors , many you may not be aware of, so query the signage to make them jump through more hoops

as a side issue, my argument would be that MINSTER BAYWATCH have not sent you an NTK , the debt collector sent an NTO but no actual NTK has ever been received so the NTO isnt compliant to the BPA CoP and the NTK has never been sent, a breach of the BPA CoP in my opinion

so I would reword that section to mention this , no NTK at all , and the NTO outside the 56 day POFA 2012 window , so no keeper liability

you are getting there, so keep going, looks a lot better already , just needs some more tweaks IMHO

ps:- to get rid of the formatting issues in your popla appeal, copy and paste into notepad , check and save it , open it again, check for formatting errors and when ok copy and paste onto here (you have spaces missing etc)

Coupon-mad

no NTK at all , and the NTO outside the 56 day POFA 2012 window , so no keeper liability

and PCS 'Notice to Owner' letters are not 'POFA 2012 compliant' with the wording requirements of paragraph 8 of Schedule 4 - we've seen them before and they are not even clear about who the creditor is, let alone using the wording that paragraph 8 requires about keeper liability. And the fact it was late, blows any attempt by them at 'keeper liability out of the water.

kop1te

Small changes made to NTK sectionand formatting changed. Not sure how it looked like that initially as the WordDoc on my PC looks ok….


Dear POPLA Assessor,

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. Non compliant notice to keeper

4. Misleading signs

1) The Charge is Not a Genuine Pre Estimate of Loss
The charge of £140 is being sought for an alleged breach of the parking terms namely“A valid Pay & Display ticket was not clearly on display” consequently Icontend, and the BPA code of practice states, that a charge for breach must bebased on the genuine pre estimate of loss.

The Office of Fair Trading has stated to the BPA that a 'parking charge' is notautomatically recoverable simply because it is stated to be a parking charge, asit cannot be used to state a loss where none exists.

On the day in question there was neither damage nor obstruction caused (nor is anybeing alleged) and I therefore contend there was no loss caused to either theOperator, or the landowner, by any alleged breach.

In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedinstated that a stipulation "will be held to be a penalty if the sum stipulatedfor is extravagant and unconscionable in amount in comparison with the greatestloss 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 ismade payable by way of compensation on the occurrence of one or more or all ofseveral events, some of which may occasion serious and others but triflingdamage".

As the charge in this case is the same lump sum whether the vehicle is parked for10 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 tocalculating a genuine pre estimate of loss in this case.

I therefore require the Operator to submit a full breakdown of their genuine preestimate of loss to show how this loss was calculated in this particular parkingarea and for this particular alleged breach. Operational business costs cannotpossibly flow as a direct result of any breach as the operator would be in thesame position whether or not any breaches occur.

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

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

This initial loss is fundamental and without it, costs incurred subsequently cannotbe reasonably claimed to have been caused by the breach and as I have statedearlier - 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 theaim is to put the parties in the position they would have been in had the contractbeen performed. It also seems that courts have been unwilling to allow clausesdesigned to deter breach as this undermines the binding nature of the initialpromise made. Whilst the courts have reasonably moved away from a strictinterpretation of what constitutes a genuine pre estimate of loss, recognisingthat in complex commercial situations an accurate pre estimate will not alwaysbe possible, nevertheless it remains that a charge for damages must becompensatory in nature rather than punitive. In this case it is clear that thedominant purpose of the charge is to deter parking for longer than the time paidfor. Accordingly, I am not satisfied that the charge can be commercially justified".

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

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

The same applies in my case, and POPLA must show consistency where similar argumentsare raised by appellants. The amount of £140 demanded is punitive and unreasonable,is not a contractual fee and can neither be commercially justified or proved tobe a genuine pre estimate of loss and I respectfully request that my appeal beupheld and the charge dismissed.

The signage in the car park indicates a Parking Charge of £85 for non compliance,yet the notice to owner gives a parking charge of £140.


2. Contract with Landowner
The Operator does not own the land in question and have provided no evidence thatthey are lawfully entitled to demand money from a Driver or Keeper. They ownneither proprietary nor agency rights and hold no title or share of the land. Ido not believe that they have the necessary legal capacity to enter into acontract with a Driver of a vehicle parking there or to allege a breach ofcontract in their own name as creditor. I believe that at best they may hold asite agreement limited to issuing tickets and as such I require that they providePOPLA with an unredacted copy of the actual contract with the landowner(not alessee or managing agent).

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

a) Some parking companies have provided 'witness statements' instead of the relevantcontract. There is no proof that the alleged signatory has ever seen thecontract or that they are employed by the Landowner. Such a statement would notshow whether any payment has been made to the Operator which would obviouslyaffect any 'loss' calculations. Furthermore it would not serve to provide proofthat the contract includes the necessary authority required by the BPA Code ofPractice to allow the Operator to pursue charges in their own name as creditorand to enter into contracts with drivers.

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

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

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

3) Non compliant Notice to Keeper - no keeper liability established underPOFA 2012

No notice to keeper has been received from Minster Baywatch



The Notice to Owner received fromthe debt recovery company Parking Collection Services fails to state the periodof parking, only the time of the issue of the alleged notice, and also fails toinform the keeper of the arrangements for the resolution of disputes orcomplaints that are available.

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 isgiven} if the following requirements are met. (2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and theperiod of parking to which the notice relates.
(g)inform the keeper of any discount offered for prompt payment andthe arrangements for the resolution of disputes or complaints that areavailable'

The NTK is a nullity so no keeper liability exists.
In addition the notice to keeper was sent outside the allotted56 day time frame
screen ticket issued 18.03.2014
Notice to owner issued 03.06.2014
POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper isfundamental to establishing liability for a parking charge. Where a Notice isto 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, it was not properly issued and asregistered keeper I cannot be held liable.



4) Misleading Signs
Terms are only imported into a contract if they are clear and so prominent thatthe party 'must' have known of it and agreed. The terms are misleading,with wording that dresses up the charge as a 'contractual' fee. It is not;see point 1 a).

There was no agreement to pay. No consideration/acceptance flowed - so nocontract exists.

The sign and the Notice to Keeper are ambiguous and contradictory. On theNotice to Keeper the sum is stated as a 'contravention' for 'breachingthe terms and conditions' yet the sign misleadingly alleges a 'contractual'sum. If so, there would be a payment mechanism and a VAT invoice. There isnone. This is not a transparent contract and is a disguised penalty.Terms must be clear otherwise under the doctrine of contra proferentem, theinterpretation that favours the consumer applies.

In conclusion, I request that my appeal be upheld and the charge dismissed.

kop1te

Ignore the formatting spaces missing please, seems like it does it any time I copy and paste to this website. I will make sure it looks ok when I post the appeal.

kop1te

Coupon-mad wrote: »

and PCS 'Notice to Owner' letters are not 'POFA 2012 compliant' with the wording requirements of paragraph 8 of Schedule 4 - we've seen them before and they are not even clear about who the creditor is, let alone using the wording that paragraph 8 requires about keeper liability. And the fact it was late, blows any attempt by them at 'keeper liability out of the water.

Is there a paragraph I should add on this point? Thanks for your help.