POPLA Appeal (Review Needed Please)

bondyy

Please see post #18 for latest

Hi all,

Thanks for the great advice on the forum! I've read carefully through the sticky for newbies and would like a little reassurance that I'm following the correct procedure, I go on holiday tomorrow morning for two weeks so am a little rushed to get everything in place before I go.

PPC: P4Parking
Issued: 25/06/2014 (yesterday)
Location: Private accommodation (flats) in England

I drive a company car, of which I am the sole user, but not the registered keeper. This is the procedure I think I should be following:

1. Appeal immediately using the template 'First Appeal to the PPC' identifying myself as the keeper (and not driver(?)) so that correspondence is directed to me

2. Complain to the land owner of the flats in an attempt to have the ticket rescinded

3. Notify my fleet manager NOT to pay as I have appealed as the driver

4. After rejection follow the POPLA appeal procedure

If someone could confirm that I'm on track and haven't missed anything I'd be very grateful. My mains point of concern are:
Do I identify myself as the keeper or driver when appealing to the PPC?
Do I tell my fleet manager that I identified myself as the driver even if I identified myself as the keeper?
Have I missed anything that needs to be done in the next 2 weeks?

Thanks,
bondyy

Redx

you are the keeper , so alter the template letter to that effect and tell the manager the same , its also the same for 3) , keeper , not driver (a moot point)

as you are not the RK, yes you are following correct procedures

anybody could have been the driver, even me

The_Deep

If you are an owner/occupier or a tenant with an AST, read this

https://forums.moneysavingexpert.com/discussion/4939352=

It may well be that this ticket breaches your leasehold right to "quiet enjoyment" of your property under The Landlord and Tenant Act.

bondyy

Redx wrote: »

you are the keeper , so alter the template letter to that effect and tell the manager the same , its also the same for 3) , keeper , not driver (a moot point)

as you are not the RK, yes you are following correct procedures

anybody could have been the driver, even me

Thanks for your prompt reply, a further question:

I presume I need to give my full name and address in my PPC appeal so that they can identify me as the keeper, simply supplying my name is not enough...

bondyy

The_Deep wrote: »

If you are an owner/occupier or a tenant with an AST, read this

*URL*

It may well be that this ticket breaches your leasehold right to "quiet enjoyment" of your property under The Landlord and Tenant Act.

Unfortunately I was visiting a friends flat, but thanks for your advice!

Redx

bondyy wrote: »

Thanks for your prompt reply, a further question:

I presume I need to give my full name and address in my PPC appeal so that they can identify me as the keeper, simply supplying my name is not enough...

correct, you are trying to get this dealt with by you in your name, absolving the company (the RK) , but as keeper (not as driver - I could have been the driver so dont admit you were driving)

bondyy

Hi all,

So I’m now at the POPLA appeal stage. Here are the necessary details of the incident: I parked my company car at a new development whilst visiting a friend, in the visitor’s bay and obtained a free temporary permit for 2 hours (I could have had as long as I wanted). A parking ticket was issued by P4Parking 16 mins after the expiry of the permit. There are no charges for parking anywhere on the site. I have photos of the permit, PCN, site entrance, signage at the bay in which the car was parked and photos of the parking signs.

Below is my draft POPLA appeal, adapted from various templates and successful appeals. I’d really appreciate some advice on whether I have covered everything, whether my points are concise enough and whether I have made any mistakes.

A few further points/questions which may or may not strengthen my case if included:

• The sign says a ‘ticketed excess charge’ will be issued for a breach of terms etc. Surely the wording clearly implies that the ‘charge’ is related to costs incurred due to parking in breach of these terms – strengthening my GPEOL argument
• Does the fact that I obtained a permit imply I had accepted/entered into any form of contract?
• I read a recent post stating P4Parking were not a proper company (no companies listed under the name they provide), could this strengthen my appeal?
• I feel that point 4 is rather weak, should I take it out to keep the appeal concise?

Thanks in advance all, you guys do a fantastic job. Draft appeal in next post:

bondyy

POPLA Appeal
RE: POPLA CODE- XXXXXXXXXXX

Parking Charge Number (PCN): XXXXXXXX
Vehicle Reg: XXXXXX
Operator: Nighthawk Parking (Trading name of P4Parking (UK) Ltd)

I am the keeper of the vehicle which was issued with a PCN for parking with an expired permit (equating to an overstay of 16 minutes). I challenged this notice on a number of issues. I then received a rejection with regards to the alleged contravention. I would like to appeal this notice on the following grounds.

1. PCN neither a genuine contractual fee nor genuine pre-estimate of loss
2. No contract assigning rights to P4Parking to enforce contracts with drivers
3. No contract formed by the signage
4. Charge non compliant to the BPA Code of Practice

1. Neither a genuine contractual fee nor genuine pre-estimate of loss
The demand is a punitive amount that was not a contractually agreed parking tariff and bore no relationship to any loss. P4Parking cannot demonstrate any initial quantifiable loss as the parking spaces are provided free of charge to visitors of residents living at the development. 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.

P4Parking notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from a parking event. 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. P4Parking 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.

Therefore P4Parking cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. Given that P4Parking charge the same lump sum for a 16 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear this charge is not a genuine pre-estimate of loss caused by this incident in this car park.

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

Neither can the charge be 'commercially justified'. POPLA Assessor Chris Adamson stated in June 2014 that:
''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

I therefore require P4Parking to supply:
• A detailed breakdown of their genuine pre-estimate of loss based on 16 minutes between the expiry time on the permit and the issue time of the parking ticket.

2. No contract assigning rights to P4Parking to enforce charges in the courts or to form their own contracts with drivers

I believe that P4Parking has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, or to pursue charges for breach in their own name. In the absence of such title, P4Parking must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This has not been produced by P4Parking in their rejection statement so I have no proof that such a document is in existence. I contend that P4Parking merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. A commercial site agent for the true landholder has no automatic standing, nor authority, in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.

I therefore require P4Parking to supply:

• An unredacted, contemporaneous copy of the contract between P4Parking and the landowner.

This is required so that POPLA and I can check that it allows P4Parking to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.).



3. No contract formed by the signage

I submit that this signage failed to comply with the BPA Code of Practice (CoP) section 18 and Appendix B. 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 signs failed to properly warn/inform the driver of the terms and any consequences for breach. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late.

The closest sign to the entrance of the development is inadequate in size and prominence, placed high on a pole, with small text and set far back from the road. I say that in order for drivers to read this, they must park, get out of their vehicles and use a stepladder to read the sign. The sign therefore breaches Appendix B of the BPA CoP, which states ''Signs should be readable and understandable at all times...”, Appendix B also states that the terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. These signs are not legible from any position within a vehicle or when entering the development. Further, the only sign in the parking bay in which the driver parked states: the bay is for ‘temporary permit parking only’ and requests that drivers ‘please ensure permit is clearly displayed’, this sign is provided by the landowner and contains no reference to P4Parking. There is no signage clearly indicating how a driver may obtain a permit, how the permit must be displayed or what the penalties are for breaching the alleged contract (denied in this case) formed with a driver.

To breach a contract, one must have been formed in the first place. It is my submission that such a contract was not formed. At no time was it brought to the driver’s attention on any sign that they had the right to enter a contract for parking, if such a contract was intended it would have been made clear and the driver would have been afforded an opportunity to enter into a negotiation in order to influence the contractual terms which is also a necessary part of a contract.

I therefore require P4Parking to supply:

• Detailed evidence demonstrating that the signage on site complies with the BPA Code of Practice, including a map of signage throughout the site, detailing the heights and sizes of said signage, and photos of signage at the entrance to the site and in the bay in which the driver parked.

4. Charge non compliant to the BPA Code of Practice

The ticket I received from P4 Parking had no reference to VAT shown on it. If it was an invoice for payment of a service contract, it must show VAT details on it, i.e., for parking services amount owed £50 + VAT at 20% = £60. Since there is no mention of VAT it must therefore be presumed to be nil or zero rated which would be the applicable rate for a fine or penalty, which of course is non compliant to the BPA Code of Practice itself which states that the use of fine or penalty may not be used. That doesn’t legitimise the use of a more convenient term though. If the amount demanded were a contractual charge then it fails the test for that based entirely upon the wording on the ticket. It MUST show the VAT details of the company in accordance with the BPA Code of Practice, and it does not, therefore cannot be a breach of an alleged contractual arrangement.


With all this in mind, I request that my appeal is upheld and for POPLA to instruct P4Parking to cancel the PCN.

Yours faithfully,


XXXXXXXXXXX

Dee140157

Appeal looks ok to me
P4Parking are members of the BPA, so I can comment on whether they are a proper company (I would argue all PPCs aren't proper companies!)
You can include the words about the ticket excess in your GPEOL if you wish as it will strengthen it if they are describing it as a breach.
Obtaining a permit implies nothing
Leave point 4 in. The more they have to do do try and win (but fail) the better.
Let someone else give this once over too in case there is anything extra to add.

bondyy

Dee140157 wrote: »

Appeal looks ok to me
P4Parking are members of the BPA, so I can comment on whether they are a proper company (I would argue all PPCs aren't proper companies!)
You can include the words about the ticket excess in your GPEOL if you wish as it will strengthen it if they are describing it as a breach.
Obtaining a permit implies nothing
Leave point 4 in. The more they have to do do try and win (but fail) the better.
Let someone else give this once over too in case there is anything extra to add.

Thanks very much for your response, I'll use your pointers and wait for someone else to give it a read too

bondyy

Hi all,

I've updated my draft appeal to refer to the 'ticketed excess charge'. See the next post down.

Could someone also please advise me which pictures to include when I appeal. I currently have photos of: the permit, PCN, site entrance, signage at the bay in which the car was parked and photos of the parking signs.