Park Direct Uxbridge - Appeal to POPLA Draft need help

jabgk

I have recently received a PCN from park direct uk uxbridge for £100 for waiting in the car park for under 5 mins. I have appealed to them and it has been rejected as expected and I am now planning on appealing to POPLA. I have trawled through all the forums and advice sites on the internet and tried to combine some of the points. I have put one together myself but I would really appreciate somebody taking a look at the the draft and advising me on any changes I should make. I am extremely unsure on point 3 that I make because I am not in full understanding to what it all means but the NTK point is brought up time and again on these threads.

I really don't want to get this wrong so please help! (I also leave for holiday Friday so I really need to submit this ASAP as I probably won't back in time to submit after.)

I have pasted the letter below, but a little more background on the rejection from park direct based on my initial appeal is listed below as well. These are all the points they claim in the rejection letter.

All advice would be appreciated, I really don't want to pay these con artists anything over a 4 minute wait and there to put it mildly 'questionable business ethics'

1. Signs are highly visible and noticeable upon entry to car park drivers duty to check on restrictions etc
2. Mere stopping and waiting for dropped of passenger breaches t&c of parking
3. Charges in accordance with 19.5 and 19.7 of BPA
4. GPEOL includes things like call out expense, cost of assessing appeals, rent staff phone etc costs, PCN processing, parking attendant equipment cost, membership fees, dvla fees, insurance
5.warning signs disclose all t&c customer service available 24hrs a day to assist and discuss
6. Signs are compliant in location and size, drivers duty to park in accordance with such
7. Comply with schedule 4 of freedoms act 2012 and BPA code of practice
8. Have contractual agreement with landowner to enforce t&c and bound by confidentiality to not disclose details of contract
9. PCN states all payments, cheques etc to made payable to Park Direct making them creditors
10. Driver drove of whilst making the necessary preparation to PCN to place on vehicle

Dear POPLA assessor,

As the registered keeper of xxxxxxx I would like to appeal this notice on the following grounds:

My POPLA code is xxxxxxxxxx

1. The Charge not a genuine pre-estimate of loss
2. Lack of sufficient contractual authority
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. Grace period insufficient despite BPA Code of Practice
6. Operation is not reasonable, consistant or transparent

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 potentially been suffered by the Landowner. I put Park Direct to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated and how it was caused by this alleged sub-3 minute parking event. Park Direct also states but not limited to staff costs, premises, telephone, letters and postage, IT systems and support, depreciation of assets, human resources and overheads within their explanation for calculating genuine pre-estimate of loss. This are all costs which would occurred whether the claimed contravention took place or not and cannot be calculated in any genuine pre-estimate of loss. The parking 'charge' should be cancelled on this point alone

2. Lack of sufficient contractual authority

Park Direct 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 Park Direct 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 Park Direct and their client, containing nothing that could impact on a third party customer. Also the contract must be with the landowner - not another agent - and must comply with paragraph 7 of the BPA CoP and show that this contravention can result in this charge at this car park and that Park Direct can form contracts with drivers in their own right. 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.

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;
©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 on the floor of the car park as highlighted in the pictures issued to the keeper of the vehicle as evidence by Park Direct. The sign was not seen by the driver and would have been invisible in the dark. At 22.40pm, the car park is extremely dark, as is shown from Park Direct's own evidence photo, and the sign was placed on the ground making the sign only visible if the driver was specifically seeking out the sign at pavement level.

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...''

5. Grace period insufficient despite BPA CoP
The BPA code of practice states that: “You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”

The driver of the vehicle was in the the car park according to the evidence provided by Park Directs first Parking Charge Notice for a total of xx seconds, this does not even allow a reasonable grace period of 60 seconds for the driver to notice a sign while driving and then leave the premises. The rejected appeal letter then further shows pictures highlighting a total of approx x minutes xx seconds again an unreasonable grace period for the driver to enter the car park fully, find a space, park the vehicle, leave the vehicle, lock the car, locate the sign in the dark, decipher the wording then choose to leave the car park following the same procedure as when entering the car park. With only 60 seconds of grace period offered, there has clearly been an insuffient amount of ‘grace period’ given to the driver in this instance.


6. It would appear that the 'parking attendant' used a handheld ordinary camera/phone to take photographs and there was no windscreen PCN issued so the driver had no idea of any contract nor any alleged breach. I don't believe that the person was wearing any kind of uniform or ID showing they are involved with 'parking enforcement' while the parking attendant proceeded to secretly take photos of the vehicle without making themselves known to the driver, as evidenced by the fact that all photos are off the rear of the vehicle, with no attempt to take photos of the front of the vehicle due to the driver occupying the vehicle at all times and never exiting the vehicle. I require evidence that the person was properly trained in the BPA Code of Practice as is required for any self-ticketing, as the lack of grace period and the secret pictures taken leads me to think this was not a trained operative. Nor were they using a liveried vehicle, and I contend that mobile phone pictures from a passer-by are neither reliable nor compliant with the BPA CoP as this is not a reasonable, consistent nor transparent operation. Park Direct also claim that the parking attendant was unable to issue a ticket before the 'driver drove off', I contest that no attempt was made to issue a ticket due to but not limited to the use of non compliant photographs, untrained parking attendants and no uniform or ID.

Guys_Dad

Passenger got out to read signs, returned to car and told driver that charges were operating and driver decided to leave car park. All that took about 4 minutes.

If however, it was 10 minutes and no one went to read signs, then grace period would not be applicable.

jabgk

Guys_Dad wrote: »

Passenger got out to read signs, returned to car and told driver that charges were operating and driver decided to leave car park. All that took about 4 minutes.

If however, it was 10 minutes and no one went to read signs, then grace period would not be applicable.

The passenger got out of the car to pick up a take away. the pictures sent by park direct show a total time from first picture to last of less than 4 minutes.

Should I remove this point from the appeal then?

Dee140157

Absolutely do not remove it. The point. Guy's Dad is making is that they don't know what you were doing in the 4 mins so having a grace period of only a minute is ridiculous. Do not however say he got a takeaway!

jabgk

Ok thanks for clarifying Dee. Would you say the rest of the appeal letter is Ok to send out as is and under the circumstances do I stand a good chance of success with POPLA?

Coupon-mad

Looks good after a very quick skim-read as I am cooking Supper!

But if you haven't done so already I would search this forum* for the single keyword 'Uxbridge' to read threads from others who have been there, done that, won at POPLA re the same car park! Copy from their efforts if you've missed anything relevant. Submit the appeal online to POPLA so you know it's received before you go, ticking 3 out of 4 boxes (not the stolen car one).




* use the search this forum heading - next to 'forum tools' on page one just in the line above the sticky threads.

jabgk

Coupon-mad wrote: »

Looks good after a very quick skim-read as I am cooking Supper!

But if you haven't done so already I would search this forum* for the single keyword 'Uxbridge' to read threads from others who have been there, done that, won at POPLA re the same car park! Copy from their efforts if you've missed anything relevant. Submit the appeal online to POPLA so you know it's received before you go, ticking 3 out of 4 boxes (not the stolen car one).




* use the search this forum heading - next to 'forum tools' on page one just in the line above the sticky threads.

Hi Coupon-mad,

I have taken your advice and searched for uxbridge on the forum and came across a couple of extra points which I believe you yourself had mentioned elsewhere. I have adjusted the appeal letter and posted below. Can you take a quick look and confirm it's good to send and I will get it submitted tomorrow. It's really appreciated all the work you guys do to help us all out.

As the registered keeper, I would like to appeal this notice on the following grounds:

1. The Charge is not a genuine pre-estimate of loss
2. Lack of sufficient contractual authority
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. Grace period insufficient despite BPA CoP
6. Operation is not reasonable, consistent or transparent
7. Unfair terms - Unenforceable Disguised Penalty

The charge is 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 potentially been suffered by the Landowner. I put Park Direct to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated and how it was caused by this alleged sub-4 minute parking event. This PCN is really about breach of contract, so loss must be shown or the charge is unenforceable. 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.

Park Direct states, but not limited to "staff costs, premises, telephone, letters and postage, IT systems and support, depreciation of assets, human resources and overheads" within their explanation for calculating genuine pre-estimate of loss. This are all costs which would occurred whether the claimed contravention took place or not and cannot be calculated in any genuine pre-estimate of loss. The parking 'charge' should be cancelled on this point alone.

Park Direct 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 (as listed above) and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this event.

Park Direct 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. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator.


2. Lack of sufficient contractual authority

Park Direct 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 Park Direct 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 Park Direct and their client, containing nothing that could impact on a third party customer. Also the contract must be with the landowner - not another agent - and must comply with paragraph 7 of the BPA CoP and show that this contravention can result in this charge at this car park and that Park Direct can form contracts with drivers in their own right. 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.

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 'an outstanding parking charge'. This so-called outstanding 'parking charge' is not quantified and the signs do not support that contention (see point 4) therefore the NTK misstates the alleged contravention and fails to meet the strict requirements of POFA2012.

Conversely the NTK fails to identify the 'creditor' and fails to state a 'period of parking' so it again does not meet the requirements of POFA 2012. It is not for me to guess who the creditor is. It could be 'ParkDirectUK 'or 'ParkDirectUK Ltd' (both legal names are on the NTK), or alternatively the creditor could be their client, or the landowner, or another party.

There is no 'keeper liability' from a fundamentally flawed NTK and POFA 2012 only applies to parking events. This was not a parking event at all, it was an example of ParkDirect's well documented (in the national press) sharp practice in taking photos of any vehicle which drives through/turns around near their operative with her mobile phone camera, then sending out speculative demands.

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 on the floor of the car park as highlighted in the pictures issued to the keeper of the vehicle as evidence by Park Direct. The sign was not seen by the driver and would have been invisible in the dark. At xx.xxpm, the car park is extremely dark, as is shown from Park Direct's own evidence photo, and the sign was placed on the ground making the sign only visible if the driver was specifically seeking out the sign at pavement level.

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...''

5. Grace period insufficient despite BPA CoP

The BPA code of practice states that: “You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”

The driver of the vehicle was in the the car park according to the evidence provided by Park Directs first Parking Charge Notice for a total of xx seconds, this does not even allow a reasonable grace period of 60 seconds for the driver to notice a sign while driving and then leave the premises. The rejected appeal letter then further shows pictures highlighting a total of approx x minutes xx lseconds again an unreasonable grace period for the driver to enter the car park fully, find a space, park the vehicle, leave the vehicle, lock the car, locate the sign in the dark, decipher the wording then choose to leave the car park following the same procedure as when entering the car park. With only 60 seconds of grace period offered, there has clearly been an insufficient amount of ‘grace period’ given to the driver in this instance.


6. Operation is not reasonable, consistent or transparent

It would appear that the 'parking attendant' used a handheld ordinary camera/phone to take photographs and there was no windscreen PCN issued so the driver had no idea of any contract nor any alleged breach. I don't believe that the person was wearing any kind of uniform or ID showing they are involved with 'parking enforcement' while the parking attendant proceeded to secretly take photos of the vehicle without making themselves known to the driver, as evidenced by the fact that all photos are off the rear of the vehicle, with no attempt to take photos of the front of the vehicle due to the driver occupying the vehicle at all times and never exiting the vehicle. I require evidence that the person was properly trained in the BPA Code of Practice as is required for any self-ticketing, as the lack of grace period and the secret pictures taken leads me to think this was not a trained operative. Nor were they using a liveried vehicle, and I contend that mobile phone pictures from a passer-by are neither reliable nor compliant with the BPA CoP as this is not a reasonable, consistent nor transparent operation. Park Direct also claim that the parking attendant was unable to issue a ticket before the 'driver drove off', I contest that no attempt was made to issue a ticket due to but not limited to the use of non compliant photographs, untrained parking attendants and no uniform or ID.


7. Unfair terms - Unenforceable Disguised Penalty

The sign & the NTK are unclear, ambiguous & contradictory. On the NTK the sum is extremely hard to find, hidden in small print on the back. It is stated as a 'contravention' for 'breaching the terms' and this is repeated in the rejection. Yet the sign misleadingly alleges a 'contractual' sum. If so, there would be a time-limited stay, a payment mechanism and a VAT invoice. There is none. This is a disguised penalty. Terms must be clear otherwise the interpretation that favours the consumer applies.

Dee140157

Minor point you need the Number 1 against the first paragraph heading. I would also bold each of the paragraph headings, it's good to make it easy for the assessor to read.
Oh and of course don't forget to full in the relevant minutes in paragraph 5

But other than that looks good to go. Roll on another winning appeal.

Coupon-mad

That looks great, I think I will link it as a POPLA example for ParkDirect at Uxbridge, in the 'How to win at POPLA' link in the NEWBIES thread (because you will win!).

jabgk

Coupon-mad wrote: »

That looks great, I think I will link it as a POPLA example for ParkDirect at Uxbridge, in the 'How to win at POPLA' link in the NEWBIES thread (because you will win!).

Thanks for all the help, once i get an answer from POPLA I can add the original PCN and appeal rejection from PARK DIRECT if this will also help others?

jabgk

Coupon-mad wrote: »

That looks great, I think I will link it as a POPLA example for ParkDirect at Uxbridge, in the 'How to win at POPLA' link in the NEWBIES thread (because you will win!).

Coupon-mad, I won the appeal at POPLA I just recieved an email today. It appears that Park Direct tried to send evidence arguing the point on GPEOL and it was still overturned. Thanks for the help in reviewing my letter. Another win for the Good Guys!

If you want me to post any of this information to help others let me know and I will be happy to upload all the correspondence i have had so people can see a chain from start to finish.

Cheers