CPM ticket for "Not Displaying a Valid Permit" - NEW?

kteara

Coupon-mad wrote: »

Just to add we've looked at this 'formal demand' letter on another thread, and it's not compliant:

https://forums.moneysavingexpert.com/discussion/5020414

So have you sent your POPLA appeal yet? Hope you haven't decided to ignore or pay the silly thing! You are about to win at POPLA if you send an appeal based on our examples (in the Newbies thread 'How to win at POPLA' in post #3 of that sticky) and include the fact the NTK isn't compliant with Schedule 4 so there's no keeper liability (that part of your appeal must show the omissions which is easy as I've shown them in the link!).

How do I tailor my popla appeal to this case? please help me I am really confused and I've read the newbie thread. This is my first time going through all of this.

Coupon-mad

Don't you realise that every poster here has got a fake PCN for the first time? Yep, ALL here are newbies like you, and all manage to win:

https://forums.moneysavingexpert.com/discussion/comment/64869779#Comment_64869779

Please just pick out a similar case (POPLA appeal) from where I told you to look - I said exactly where they can be found under the hyperlink 'How to win at POPLA'. Then obviously change the PPC to be 'your' PPC and change anything not right about the signage point or other details. We can't write it for you but we almost have already. Go and find one similar, it's not difficult as I even write beside each example whether it can be used for 'any windscreen ticket/permit case' etc.

The show us the draft BUT NOT without proof reading it first. Drives me MAD when people copy one with wording about a PCN in the dark with 'unlit signs' then you ask them 'was it dark then?' and they reply 'errrrmmmm no'! Or they copy one about ParkingEye when their PPC was UKCPM, and don't bother to go through and change it throughout! We are not here to proof read, but we will help a trier.

kteara

Coupon-mad wrote: »

Don't you realise that every poster here has got a fake PCN for the first time? Yep, ALL here are newbies like you, and all manage to win:

https://forums.moneysavingexpert.com/discussion/comment/64869779#Comment_64869779

Please just pick out a similar case (POPLA appeal) from where I told you to look - I said exactly where they can be found under the hyperlink 'How to win at POPLA'. Then obviously change the PPC to be 'your' PPC and change anything not right about the signage point or other details. We can't write it for you but we almost have already. Go and find one similar, it's not difficult as I even write beside each example whether it can be used for 'any windscreen ticket/permit case' etc.

The show us the draft BUT NOT without proof reading it first. Drives me MAD when people copy one with wording about a PCN in the dark with 'unlit signs' then you ask them 'was it dark then?' and they reply 'errrrmmmm no'! Or they copy one about ParkingEye when their PPC was UKCPM, and don't bother to go through and change it throughout! We are not here to proof read, but we will help a trier.

The template states at the end that

"A new permit had been purchased from the operator who had given their permission for the vehicle to be parked, whilst awaiting them to fulfill their responsibilities and supply the permit, by displaying in the windscreen an authorisation code provided by them. This verbal contract is relied on and supercedes any terms and conditions on the signage. "

I did not have a permit shown though. So what template do I use to send to popla ? It also doesn't say how and where to send it to "popla"

kteara

Dee140157 wrote: »

The forum has 100% success rate with forum assisted POPLA appeals.
I love the fact that the parking notice is immediately above the clamping notice. You do know clamping is illegal for private parking companies do t you. That picture is priceless and should win at POPLA alone with nothing else! (But don't try that)

Yes wait for NTK and use appeal in newbie thread. If it gets rejected the come back for POPLA appeal help. You have a gold dust of a picture there with the daft conditions and the clamping sign together!

It would be even better if you get some way of showing how high it is too! The back of a non related person stood next to it would give an idea.

could you please give me a template I can use for my situation? the template on the sticky thread talks about having displayed a permit but I did not have one.

The_Slithy_Tove

You are able to edit a template, aren't you?

Coupon-mad

kteara wrote: »

The template states at the end that

"A new permit had been purchased from the operator who had given their permission for the vehicle to be parked, whilst awaiting them to fulfill their responsibilities and supply the permit, by displaying in the windscreen an authorisation code provided by them. This verbal contract is relied on and supercedes any terms and conditions on the signage. "

I did not have a permit shown though. So what template do I use to send to popla ? It also doesn't say how and where to send it to "popla"

Oh come on. I said clearly 'Then obviously change the PPC to be 'your' PPC and change anything not right about the signage point or other details.'

Please, this is silly and will wind people up who are here for free out of the goodness of our hearts. You are an adult and you can write in sentences. Stop expecting to be spoon fed an exact, tailored template - Jeez it only needs you to write a little bit, what more do you need?

Make a coffee and come back to it for a fresh look and re-write where you need to re-write. Then show us what you end up with! We will help a trier.

kteara

Coupon-mad wrote: »

Oh come on. I said clearly 'Then obviously change the PPC to be 'your' PPC and change anything not right about the signage point or other details.'

Please, this is silly and will wind people up who are here for free out of the goodness of our hearts. You are an adult and you can write in sentences. Stop expecting to be spoon fed an exact, tailored template - Jeez it only needs you to write a little bit, what more do you need?

Make a coffee and come back to it for a fresh look and re-write where you need to re-write. Then show us what you end up with! We will help a trier.

apologies. I have since re-read and I'm ready to write up the appeal. I have used this example: https://forums.moneysavingexpert.com/discussion/comment/65848442#Comment_65848442

The majority of the appeal I can use but I have a problem with the Inadequate signage section of the appeal. Now, the newbie section us to be extremely vigilant of this point because it is the basis of the UKCPM's parking charge.

This is the appeal section:

3) Inadequate Signage

Furthermore, there is only 1 visible on entering the development which is placed approx 2m up a lamp post on the opposite side of the road as you drive in. The only other sign at the end of the road that the vehicle was parked is attached to a bollard approx 1m in height. this sign is completely obscured should a car park in front of it. The BPA code of practice February 2014 clearly states that "Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand".

I assert that being unable to read the detail on the sign visible on entry without stopping your vehicle and having only one other sign located as described, which may or may not be visible depending on which spaces are occupied at the time of parking, breaches this code. One sign is not easy to read without impeding the flow of traffic behind you and the other is inconspicuous. The photograph supplied at the rejection letter stage is not one that is located at the relevant end of the development nor is it one that would have been visible on the route taken.

I therefore require that the Operator submit evidence of the "clear and prominent signage throughout the development" referred to in their rejection letter in the form of site maps and photographs clearly indicating the location and height of said signage at the time of the alleged breach.

I have taken photographs myself today for the purpose of rebuttal should the need arise and would once again remind the Operator of the requirement to submit copies of any evidence to the Appellant allowing sufficient time for consideration and rebuttal.


The problem I have is
There was more than 1 visible signage, there was 3 so can I use this appeal still?. Although the first one is above the clamping sign, I can write about it being on the opposite side to entry and being too small to read correct? The other 2 were placed so high I couldn't see due to sunlight from behind blinding me. I can use this right? The photographic evidence they are using against me supports this because the picture came out black so you can't see any of the signage. Will I still be able to use this claim even though there are 3 signs not 1 like is said in the template?

The second issue I have with the template is the last part I can't include because I did not purchase a permit. Can I replace this with something about the clamping sign they have written or not?

thank you.

Coupon-mad

Yes just completely change the signage point to include what you have said instead.

4consumerrights

" Although the first one is above the clamping sign, I can write about it being on the opposite side to entry and being too small to read correct? The other 2 were placed so high I couldn't see due to sunlight from behind blinding me. "

You mean there is a clamping sign at this location?

A formal complaint needs to be made to the BPA /DVLA - you should do this but the BMPA would also like to make a formal complaint.

Can you please email the details to the BMPA please

http://www.bmpa.eu/#!contact-us/c1erv

mark F.A.O OF 4CR/ ENFORCEMENT TEAM.


With regards to your POPLA appeal

please do on the following grounds

a) Not a genuine pre-estimate of loss -


b) Notice to Keeper non compliant.

c) No authority to issue or pursue parking charges - No contract with landowner granting sufficient locus .

d) No contract made with driver - inadequate signage


Research those points and come back for critique.

*********************************************


Have you checked your POPLA code ?

Do not miss the deadline.

kteara

Here is my updated Popla Appeal. Am I ready to file this appeal? Are there any mistakes I should remove or anything else I need to add, more importantly, can I win this appeal based on this?

HERE:
Popla Appeal

ear POPLA Assesor,

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) No contract between driver/Inadequate signage


1) a) The Charge is not a contractual fee – it is a disguised breach

The Operator has attempted to avoid the necessity of having to justify a pre estimate of loss by stating that this is a contractually agreed fee on their signage. However on both the parking charge notice (which is described as exactly that, NOT an invoice for an agreed fee) and the rejection letter to my appeal they state that the charge is for being "in contravention of" and having "breached" the terms and conditions of parking. In addition, the wording on their sign also states that "unauthorised parking may result in your vehicle being issued with a parking charge notice".

The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be consideration, it would have to mean that permission to park without a permit was given providing a fee was paid. Clearly permission to "park in breach" cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.

I would like to highlight a similar appeal against CPM where POPLA assessor Marina Kapour found that

"The charge must either be for damages as submitted by the Appellant, or for consideration - the price paid for the parking as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay provided he or she pay the charge. Clearly, permission to park 'in breach' is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge and so it cannot be consideration".

I would also highlight POPLA appeal reference 9663053967 where an initially refused appeal against the same Operator who again, made the same attempt to describe the charge as a contractually agreed fee on their signage was allowed by the Lead Adjudicator. It was found that the charge was a penalty and as such was not a genuine pre estimate of loss. I contend that the same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee but is a disguised breach and must be shown to be a genuine pre estimate of loss to be enforceable.

b) The Charge is Not a Genuine Pre Estimate of Loss

The charge of £100 is being sought for an alleged breach of the parking terms namely “parking without displaying a valid permit” consequently I contend, and the BPA code of practice states, that a charge for breach 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 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.

On the day in question, there was no damage nor obstruction caused (nor is any being alleged) and I therefore contend there was no loss caused to either the Operator, or the landowner, by any alleged breach.

In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated that a stipulation "will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss 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 is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

As the charge in this case is the same lump sum whether the vehicle is parked for 10 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 to calculating a genuine pre estimate of loss in this case.

In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred to either the Operator or to the Landowner.
I therefore require the Operator to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach.
Operational business costs cannot possibly flow as a direct result of any breach as the operator would be in 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 exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.
The operator will no doubt state that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.
This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated 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 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 reasonable 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. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified".
In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said:
"the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".
The same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can be neither be commercially justified or proved to be a genuine pre estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.
2) Contract with Landowner

The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary or agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide 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 must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

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

Even if a basic contract is produced that mentions parking charge notices, 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 the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

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

3) No contract between driver/Inadequate signage

Following the receipt of the charge, I have personally visited the site in question, and the signage at this car park especially at the entrance is inadequate for numerous reasons. The signage at entrance of the car park has no lighting and doesn't have a reflective background which makes it possible for drivers to enter the car park without seeing the signs thus no contract can be formed between the driver and UKCPM. Also, the fact the sign is unlit makes it difficult to read in dark conditions or during adverse weather (Such as were the conditions on the day in question). The signage is also at a height which makes it hard to read. The signage height also makes the signage unreadable because sunlight hits from behind. This is evident in the pictures obtained which show the signage unreadable due to the sunlight from behind. All these reasons make it possible for drivers to enter the car park without seeing the signage upon entering especially during adverse weather conditions, such as when my vehicle was parked.

Under Appendix B Entrance signs of the BPA Code of Practice it states '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 similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective.'

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 Assessor 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.

Thanks for the advice on the Clamping signage advice @4consumerrights. Yes there is a clamping sign which I have taken a picture of at the site of entrance. Will it help my appeal if I mention this or would this be a completely seperate legal matter?

P.s. Is three points enough or do I need to add more ?