POPLA appeal help needed

lewiffa

I am one of the fortunate ones to be given a PCN by LPS (Local Parking Security Limited) for parking longer than a period paid for (10 minutes). Initially, they wanted me to pay £50, now they're demanding £85. Following advice from NEWBIE thread, I appealed to first "Notice to Keeper" letter using template from the thread.

I just had a letter back saying my appeal has been unsuccessful (having carefully considered the evidence - yeah!), attached with a POPLA appeal form. Reason given : Parking longer than the period paid for. They also state in the letter they manage the car park on behalf of landowners, and they can provide copy of signed agreement upon POPLA's request.

I am after advice on how to best approach POPLA appeal. Having read number of posts, I can't really find anything I could use against them in POPLA appeal, other than "Excessive Charges", 3h parking costs £0.50, parking was pretty much empty at the time, yet they issue a £50 PCN for overstaying 10 minutes. However, their signs in car park state "Excess Charges" reasons, overstaying being one of them.

Thanks

Dee140157

The best advice is to look at the appeals linked to in the Newbie thread post 3 (by the blue words how to win at POPLAand find one similar to yours regarding eg whether it was windscreen ticket, ANPR etc.

What you have to remember is some of the appeal points like non-compliant signage are appropriate for all appeals as very few signs are compliant.

You still question their authority as it is up to them to prove it to POPLA not to you to disprove it.

Go find the best template (possibly second parking eye one because good No GPEOL argument, and come back here with your version of it.

nigelbb

Go back & read the NEWBIES sticky thread https://forums.moneysavingexpert.com/discussion/4816822

The standard appeal point will be that the charge is not a genuine pre-estimate of loss. The loss was (50/180)x10=2.7777p not £50 or £85.

There are pay & display car parks where it is possible to 'top up' before you leave if your return was delayed & you overstay the initial time paid for. It's an unfair commercial practice to penalise the motorist because their estimate of their stay was overtaken by events that delayed their return.

ColliesCarer

Hi lewiffa,

The main challenge points to include are the same one ones used in the template 1st appeal letter but expanded to include references to the relevant legal arguments e.g.
1/ Not a genuine pre-estimate of loss
2/ No legal standing/authority
3/ Unclear/non compliant signage therefore no contract with driver

to those you will probably also be able to add non-compliant/flawed ANPR cameras - if this was an ANPR monitored car park.

Check out the link for How to Win at POPLA that you will find in post #3 of the NEWBIES sticky thread for example POPLA appeals.
Appeals written for ParkinEye, Excel, Highview, UKPC in a P&D car park will probably be suitable as a base to amend.

Look for examples containing a reference (in the not a genuine pre estimate of loss point) to ParkinEye v Smith where the judge stated the only amount that could reasonably be charged was the amount that should have been paid into the machine.

Coupon-mad

And surely, the NTK wasn't fully compliant with the POFA 2012, can't have been, they almost never are! Pick out the omitted words & info from paragraph 8 (windscreen ticket case) or para 9 (postal PCN) as mentioned in the NEWBIES thread underneath the template appeal where I give a link to the Act. It is really easy to read, bullet points of what a NTK has to say and when it has to be received. A flawed NTK = 'no keeper liability'. Tons of examples in the hyperlink 'How to win at POPLA', some including the 'no keeper liability' angle.

lewiffa

Thank you everyone for your responses. :j

I realised there is a good chance to win POPLA appeal. I'll post it before submiting it through their website

lewiffa

[FONT=&quot]Here's my draft. What are your thoughts, can it make a winning case at POPLA?
[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]Dear POPLA

Address
My Details
Ref.
Issued.
Reg.
Todays Date

I appeal against the decision of Local Parking Security (LPS) because they have failed to follow the BPA code of practice and attempted to impose a penalty charge parking longer than period paid for.

My appeal points are: [/FONT]
[FONT=&quot]Details of these points will follow in this letter[/FONT]

1. [FONT=&quot]Unlawful penalty charge[/FONT][FONT=&quot][/FONT]
2. [FONT=&quot]Not a genuine pre-estimate of loss[/FONT][FONT=&quot][/FONT]
3. [FONT=&quot]No legal standing/authority[/FONT]
4. [FONT=&quot]Unfair terms[/FONT][FONT=&quot][/FONT]
5. [FONT=&quot]Unreasonable[/FONT][FONT=&quot][/FONT]

[FONT=&quot]

1. Unlawful penalty charge

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011),Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy(April 2012) .

The operator is either charging for losses or it is a penalty/fine.

The operator uses an invoice or request for monies, but headed “PARKING CHARGE NOTICE” to pass for an official Penalty Charge Notice, which only Police and Council Wardens can issue.


2. Not a Genuine Pre-estimate of loss

The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms. This might be, for example, loss of parking revenue at a retail outlet.

The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.

The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time.

Note: the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and cannot include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.


In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable[/FONT]
[FONT=&quot]
It's a pay and display car park, parking charge is only £0.50 for three hours hours. On the date of the claimed loss it was not full and there was no physical damage caused. Therefore, the only loss would have been a maximum of £0.50, not £85 as calculated by LPS. Neither can LPS lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed. See VEHICLE CONTROL SERVICESLIMITED -v- MR R IBBOTSON and A Retailer v Ms B and MsK, Oxford County Court. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by POPLA itself in adjucation.

The charge that was levied is punitive and therefore void (i.e. unenforceable)against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.


3. No legal standing/authority

The operator does not appear to own the car park and is assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, the operator has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since it holds neither interest, nor assignment of, title of the land in question.

I require the operator to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.



A site agreement with the pub is not the same thing as a contract with the rightful landowner so will not be acceptable, nor will a mere witness statement suffice. I require the actual unredacted contract with the landowner in the evidence, to check that it sets out the parking regime/charges as claimed by the Operator, assigns them title or standing to sue in their own right and otherwise complies with paragraph 7 of the BPA CoP. I understand that I have the right of reply to the evidence before the POPLA appeal is finalised and as such I will wish to scrutinise the landowner contract.

I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS)v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.

It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."

The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."

In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.

The Operator also make reference in their appeal refusal of (date) to “seek to recover the monies owed to us” and makes no reference to the Landlord at all.

7.1 of the BPA code of practice makes it a requirement that LPS either own the land, or have the written authorisation of the land owner to enable them to operate on the land. I, as registered keeper, put LPS to strict proof that a valid contract exists that enables them to act in this manner on behalf of the landowner. It is not an onerous task to produce the contract as section 8.1 of the code means it has to be available at all times.



I believe the signs are unclear and are not sufficient to form a contract with the driver. Furthermore, there is no visibility of a parking ticket machine in the car park.


4. Unfair terms

The charge that was levied is an unfair term, and therefore not binding, pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive)list of terms which may be regarded as unfair and includes at Schedule 2(1)(e)"Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation."Furthermore, Regulation 5(1) states that: "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" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term."

5. Unreasonable

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”

I further contend that LPS have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence. I, as registered keeper, contend that these cameras and their operation do not meet the standards laid down in the BPA code of practice.

I would contend that this appeal should be allowed for these reasons.[/FONT]

ColliesCarer

Hi lewiffa,

It's getting there - just needs a little fine tuning and a couple of extra points. I have a few suggestions for you:

1) change your opening sentence to something like :

"I am the registered keeper and I wish to appeal against Parking Charge Notice xxxxxx issued by Local Parking Security (LPS).
My appeal points, details of which follow, are:"

because you have included a list below of the points you are raising and there are more challenges than the two issues you have included in your opening line.

2) Check your Notice to Keeper contents and date received for compliance (as advised by Coupon-mad ) against POFA Schedule 4 Para 8 if there was an initial windscreen notice (followed by a postal NtK) or para 9 if you just received the postal NtK.
Include a point on "NtK not compliant with POFA Schedule 4 therefore no keeper liability" if you find it does not comply fully.

3) Include a point on "Non-compliant signage therefore no Contract with Driver"

4) In point 3) No legal standing/authority

a) Does this emboldened phrase apply to the location of your charge?

"A site agreement with the pub is not the same thing as a contract with the rightful landowner so will not be acceptable, nor will a mere witness statement suffice. "

If not just leave it out "A site agreement is not the same thing........etc"

b) In this para - add the phrase in red

I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract nor to pursue payment through the courts in their own name.

c) Strike this - it's not relevant to your point about no legal standing.

[STRIKE]I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS)v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.

It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."

The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."

In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.[/STRIKE]

d) the last paragraph in point 3)

"I believe the signs are unclear and are not sufficient to form a contract with the driver. Furthermore, there is no visibility of a parking ticket machine in the car park."

needs to be deleted or moved to be part of a separate signage point. But make sure if you do include it in your signage point that it applies to your location/circumstances e.g. if you paid but overstayed the time the last sentence may not be applicable as for obvious reasons, in those circumstances, it would be inappropriate to argue there were no visible P&D machines.


5) In your point 5. Unreasonable - the last paragraph:-

I further contend that LPS have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence. I, as registered keeper, contend that these cameras and their operation do not meet the standards laid down in the BPA code of practice.

relates to ANPR cameras.

If there was an initial windscreen ticket delete it as ANPR will not apply.

If there wasn't a windscreen notice - ANPR needs to be included as an additional point - also take a look at the ParkingEye examples in How to Win at POPLA for an excellent ANPR point (written by Coupon-mad) which refers to the case lost by ParkingEye for flawed ANPR system.

Hope that helps - post up your re-draft for other forum members assistance in finalising it.

lewiffa

Thanks ColliesCarer, it is a massive help. I've deleted irrelevant sections as suggested. Unfortunately, I couldn't find any breaches against POFA when i checked windscreen ticket and NTK content and dates. My re-draft posted below :

[FONT=&quot]Dear POPLA

Address
My Details
Ref.
Issued.
Reg.
Todays Date

I am the registered keeper and I wish to appeal against Parking Charge Notice xxxxxx issued by Local Parking Security (LPS).
My appeal points, details of which follow, are:[/FONT]

1. [FONT=&quot]Unlawful penalty charge[/FONT]
2. [FONT=&quot]Not a genuine pre-estimate of loss[/FONT]
3. [FONT=&quot]No legal standing/authority[/FONT]
4. [FONT=&quot]Unfair terms[/FONT]
5. [FONT=&quot]Unreasonable[/FONT]
6. [FONT=&quot]Non-compliant signage therefore no Contract with Driver[/FONT]

[FONT=&quot]

1. Unlawful penalty charge

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011),Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy(April 2012) .

The operator is either charging for losses or it is a penalty/fine.

The operator uses an invoice or request for monies, but headed “PARKING CHARGE NOTICE” to pass for an official Penalty Charge Notice, which only Police and Council Wardens can issue.


2. Not a Genuine Pre-estimate of loss

The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms. This might be, for example, loss of parking revenue at a retail outlet.

The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.

The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time.

Note: the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and cannot include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.


In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable[/FONT]
[FONT=&quot]
The parking charge is only £0.50 for several hours. On the date of the claimed loss it was not full and there was no physical damage caused. Therefore, the only loss would have been a maximum of £0.50, not £85 as calculated by LPS. Neither can LPS lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed. See VEHICLE CONTROL SERVICESLIMITED -v- MR R IBBOTSON and A Retailer v Ms B and MsK, Oxford County Court. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by POPLA itself in adjucation.

The charge that was levied is punitive and therefore void (i.e. unenforceable)against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.


3. No legal standing/authority

The operator does not appear to own the car park and is assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, the operator has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since it holds neither interest, nor assignment of, title of the land in question.

I require the operator to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.



A site agreement is not the same thing as a contract with the rightful landowner so will not be acceptable, nor will a mere witness statement suffice. I require the actual unredacted contract with the landowner in the evidence, to check that it sets out the parking regime/charges as claimed by the Operator, assigns them title or standing to sue in their own right and otherwise complies with paragraph 7 of the BPA CoP. I understand that I have the right of reply to the evidence before the POPLA appeal is finalised and as such I will wish to scrutinise the landowner contract.

I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege breach of contract nor to pursue payment through the courts in their own name.

The Operator also make reference in their appeal refusal of (date) to “seek to recover the monies owed to us” and makes no reference to the Landlord at all.

7.1 of the BPA code of practice makes it a requirement that LPS either own the land, or have the written authorisation of the land owner to enable them to operate on the land. I, as registered keeper, put LPS to strict proof that a valid contract exists that enables them to act in this manner on behalf of the landowner. It is not an onerous task to produce the contract as section 8.1 of the code means it has to be available at all times.


4. Unfair terms

The charge that was levied is an unfair term, and therefore not binding, pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive)list of terms which may be regarded as unfair and includes at Schedule 2(1)(e)"Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation."Furthermore, Regulation 5(1) states that: "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" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term."

5. Unreasonable

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”

[/FONT]
[FONT=&quot]6. Non-compliant signage therefore no Contract with Driver[/FONT][FONT=&quot]

[/FONT][FONT=&quot]I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because LPS are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). 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.

In breach of Appendix B (Mandatory Entrance Signs) LPS have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The only signs are situated high up on poles where they are unable to be read nor even seen by the occupants of the car, who were there at the invitation of the retail park, to shop and enjoy free parking as expressly offered to customers in the principal's advertising and website.

As a POPLA assessor has said previously in an adjudication:
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

[/FONT][FONT=&quot]I would contend that this appeal should be allowed for these reasons.[/FONT]

Coupon-mad

That appeal template is a bit of an old version, looks like one based on a 2013 version, e.g. points 1, 4 and 5 are all the same thing really and should be the last point only. And there's more you can say about 'no GPEOL'. Do have a look at the newer examples in 'How to win at POPLA' in post #5 of the NEWBIES thread and adapt it more to be sure it's a winner.

And was yours a windscreen ticket first, or a postal PCN? It's the first letter that you need to check thoroughly against the POFA, not the windscreen PCN if there was one. Are you saying it was received in time (depending upon which deadline applies, postal or windscreen case), and that it identifies the creditor with that word, and specifies the period of parking and says how much was paid and how much remains unpaid of the parking fee due? I can't find a pic of a Local Parking Security Limited Notice to Keeper to check, so maybe you can show us both sides (cover the PCN number and the car reg).

lewiffa

Thanks Coupon-mad, I'l merge points 1,4 &5 into one. Sadly, I don't have much time left, so i'll have to submit what i have and keep fingers crossed