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Would really appreciate feedback
Gemlou
Posts: 90 Forumite
Hi, back again ;0( as I have received a POPLA code with the inevitable rejection of my appeal against another penalty charge from the "we change the rules to suit us and pretend to work on behalf of the residents but actually actively persecute them to build up our retire to somewhere hot fund" parking company who operate in our development. Actually feel far less intimidated this time thanks to the support I received on the appeal that is currently with POPLA but I will post the new appeal below and would really appreciate coupon-mad and/or others just letting me know it's ok to send. It's very similar to my last appeal but the last point I've added. Many thanks, will let you know the outcome of both.
Dear 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)The alleged contravention did not occur
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 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 for longer than 48 hours 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 “not adhering to the maximum stay restriction” 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, a permit had been paid for, 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. For reference, the alleged overstay was for just 22 minutes.
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 request 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) The alleged contravention did not occur.
If CPM are unable to rebut my challenge then I submit that my assertion that the contravention did not take place is upheld.
Dear 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)The alleged contravention did not occur
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 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 for longer than 48 hours 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 “not adhering to the maximum stay restriction” 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, a permit had been paid for, 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. For reference, the alleged overstay was for just 22 minutes.
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 request 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) The alleged contravention did not occur.
If CPM are unable to rebut my challenge then I submit that my assertion that the contravention did not take place is upheld.
0
Comments
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for info to all, here is a previous thread I believe is being referred to
https://forums.moneysavingexpert.com/discussion/4999986
hopefully this is more of the same , same topic , same PPC etc
posting a popla appeal on here is no good without the background that led to the PCN etc , and any initial appeals to the PPC0 -
It is, sorry I should maybe have posted the link.0
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I'm puzzled. Is this your residential parking again, and are they seriously saying that you can only use any one space for a period of 48 hours and then you have to go elsewhere for at least 24 hours? I mean seriously? And is there any such codswallop on the signage? What if you go on holiday without your car?
Also there is a perfect defence to the no-return-within-x-hours rubbish, which you are destroying with what you have written. In fact you are giving away far too much and I strongly advise you to edit that post and remove that last paragraph immediately.
The defence is this:
Supposing the driver of your vehicle entered into a contract on the occasion of the first time it was parked, that contract could and would be binding only on that driver. It cannot bind any other person nor make the original driver liable for any other person's actions, even if that other person is subsequently parking the same vehicle as the original driver.
The operator has no way of knowing whether the vehicle remained parked continuously (indeed their own photographic evidence indicates otherwise), and if the vehicle was removed and returned then a breach of the supposed contract can only have occurred if the same person was driving the vehicle on both occasions it was parked. However, the operator has adduced no evidence that this was the case, and indeed has no such evidence.
Accordingly the operator has no evidence that any breach of contract has occurred so there is nothing for which the registered keeper can be held liable. Furthermore, the lack of evidence of any breach of contract means the operator had no reasonable cause to request registered keeper details from DVLA and has committed a serious breach of both the DPA and the KADOE contract by doing so.Je suis Charlie.0 -
Yes, it is the residential parking. It's not our allocated space but the "casual parking" bays which require a permit. If I went on holiday I can leave 1 car in our allocated space but nothing in the casual parking area.
Signs day 48 hr max stay and no return within 24 hours. Their office confirmed a while ago that this refered to any particular space but their rejection letter was worded to suggest it applied to the whole area so basically any resident with a second car (most of us) can't park both at home all the time.
I have removed the last section as suggested, should I rewrite using the point you raised? Can I complain to the dvla?0 -
My appeal to them did include the info that I just deleted, what if they send it to POPLA?0
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Ok, 2nd draft. How's this.....
Dear 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)The alleged contravention did not occur
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 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 for longer than 48 hours 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 “not adhering to the maximum stay restriction” 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, a permit had been paid for, 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. For reference, the alleged overstay was for just 22 minutes.
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 request 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) The alleged contravention did not occur.
Clearly shown in the photographs supplied by the Operator in their rejection of my appeal, the vehicle was in the first picture parked in the space at the very end of the brick paving and you can see the edge of the Tarmac area behind it. In the second photograph 48 hours and 22 minutes later by their own calculations it is parked 1 space away from the Tarmac indicating that the car had in fact left the development in the mean time. I called their office and it was confirmed by a female that you can only park IN A PARTICULAR SPACE for a maximum of 48 hours after which you can't return to the same space for 24 hours. As the vehicle was parked in a different space, according to their own office staff no contravention occurred.
Furthermore, should the driver of this vehicle have entered into a contract on the occasion of the first time it was parked, that contract could and would be binding only on that driver. It cannot bind any other person nor make the original driver liable for any other person's actions, even if that other person is subsequently parking the same vehicle as the original driver.
The operator has no way of knowing whether the vehicle remained parked continuously (indeed their own photographic evidence indicates otherwise), and if the vehicle was removed and returned then a breach of the supposed contract can only have occurred if the same person was driving the vehicle on both occasions it was parked. However, the operator has adduced no evidence that this was the case, and indeed has no such evidence.
Accordingly the operator has no evidence that any breach of contract has occurred so there is nothing for which the registered keeper can be held liable.
I therefore request that my appeal be allowed and the Operator instructed to cancel the charge.0 -
I had to remove the bit about the dvla and won't be able to complain, I just realised I appealed from the ticket before I knew that the advice was to wait for the ntk. Unfortunately I received and appealed both the tickets before I discovered this forum when I was naive enough to believe that as I was in the right and could prove it I had a fair chance of persuading them to cancel them.0
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Unfortunately if you included the same wording in your appeal to the operator that you have now deleted from here then you admitted who was driving and my defence to "no return within x hours" is dead in the water.Je suis Charlie.0
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I did pretty much because it was the truth and I didn't know then what I now know about mitigating circumstances. You live and learn I guess but I feel silly now for being so naive. What is best now, include the original paragraph and hope or leave it out altogether? I still have points 1 and 2?0
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I shouldn't give up now because I ballsed up with the initial appeal should I? I've made a note of bazsters advice as it's so confusing remembering where you've parked from one day to the next that I'm bound to be in this situation again but for now do I rely on the rest of the appeal I have, is there anything else I can add and should I include an explanation as per my original appeal as to how I know I was gone for over 24 hours
Or should I just invite them to prove it? As Bazster said, they have no way of knowing whether the vehicle was continuously parked and their own photographic evidence shows otherwise. Sorry to have messed up, I got both of these tickets close together and as I said I appealed them on mitigation then discovered this forum when the first one was rejected.0
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