Would really appreciate feedback

Gemlou

http://s1370.photobucket.com/user/gemlou7/media/Mobile%20Uploads/image_zpscf350652.jpg.html?filters%5Buser%5D=140608092&filters%5Brecent%5D=1&sort=1&o=4

These are the only signs visible when you actually park, the entrance sign which has more detail is 2m up a pole on the opposite side of the road as you drive in and any others are set back from the road on the walls of some of the apartment blocks so I could maybe put the signage point back in if someone could help me with the contravention not occurring section.

Coupon-mad

You definitely need a signage point then! There's nothing in that sign about not staying beyond 48 hours and no return within 24 hours. The signs would need to be clear on the terms which apply to those 'casual parking bays' and there would need to be signs near them telling drivers about the restrictions that apply to those bays.

And your 'contravention did not occur' section is easy to include still - just use the first paragraph you wrote about it.

Gemlou

Thanks coupon-mad, the larger signs on the opposite side of the road have that wording but not the ones you park next to (thus obscuring them for the next person to pull up!) I'll re-jig it and post a final draft which I'd love your thoughts on. I planned to wait till I get the answer to my first appeal which should be next week in case there is anything that lets me down in that one but I think I'll just get it submitted and wait unless you think I should hold off? Definitely going to keep hold of Bazsters advice in case there's a next time and have made my last mitigation appeal without waiting for the ntk!! Thanks again.

Gemlou

How about 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) Inadequate and ambiguous signage
4)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) Inadequate and ambiguous signage

Furthermore, there is only 1 visible sign 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 on the same side of the road is attached to a bollard approx 1m in height. this sign is completely obscured should a car park in front of it and does not mention the maximum stay. There are other signs further away which do which you would pass to park at this end but these are on the opposite side of the road attached to the apartment buildings which makes it unclear as to whether the same rules apply to the whole development as the wording on the signs differs.

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 in order to comply with this code, all of the signs should be specific about any maximum length of stay if this rule applies to the entire estate.

I also assert that being unable to read the detail on the sign visible on entry without stopping your vehicle and having only one sign located as described at the far end of the development which may or may not be visible depending on which spaces are occupied at the time of parking, further breaches this code.

I therefore require that the Operator submit evidence of clear and prominent signage throughout the development 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.

4) 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 the Operator's office recently to enquire as to whether we could use visitors passes (referred to as vp permits) in the casual parking area and to check on the exact rules before I let my mother park there as the wording on the permit does not make it clear as to whether you are obliged to leave the space you have parked in after the maximum stay or the whole development 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.

The Operator has no way of knowing whether the vehicle remained parked continuously (indeed their own photographic evidence indicates otherwise) in fact according to their rejection letter the site was not checked for 48 hours and 22 minutes after the first photograph was taken. I have offered the Operator proof that the vehicle was absent from this parking area for more than the required 24 hour period and If they wish to rebut my challenge I put them to strict proof of the contrary.

If CPM are unable to rebut my challenge then I submit that my assertion that the contravention did not take place is upheld.

Coupon-mad

Yes that's fine. Where you say this in the signage paragraph I might just spell it out for POPLA, as shown:


I assert that in order to comply with this code, all of the signs should be specific about any maximum length of stay if this rule applies to the entire estate. The nearest sign to the casual parking bays for visitors says nothing whatsoever about any 48 hour restriction nor about any rules about not returning within 24 hours.

Gemlou

Thank you very much once again, good point. I'll submit it in the morning and let you know how it goes. Hoping to update my previous post with good news next week too. Only a few more days to keep my fingers crossed....

bazster

Just remember in future, as per my earlier posts, these "no return with x hours" terms are totally unenforceable - so long as you don't tell them who was driving and put them to proof that it was the same person on both occasions.

I am currently trying to get a few "no return" charges collected on my cars as I want to get PoPLA to adjudicate on this point and I want to kick up a huge stink at DVLA over them dishing out keeper details to PPC's who've got no evidence that any breach of the terms actually occurred.

This is quite different to the standard pre-POFA situation where the PPC supposedly had evidence that someone breached the terms, albeit not necessarily the keeper. In these "no return" situations they've no evidence that anyone breached the terms.

If we can get DVLA and the ICO to understand that there is no "reasonable cause" in these circumstances then DVLA has a huge headache, because it will need to understand why a PPC is requesting data in much more detail than it does presently.

Gemlou

That's really useful thank you. If you are anywhere near Brighton and want to test the theory I have a spare pass you are welcome to borrow for 49 hours! Should they try it again I'll be in touch though.

bazster

I was just in Brighton last weekend! No more visits planned for the forseeable though, I'll just have to keep double-dipping supermarkets!

Coupon-mad

Gemlou wrote: »

That's really useful thank you. If you are anywhere near Brighton and want to test the theory I have a spare pass you are welcome to borrow for 49 hours! Should they try it again I'll be in touch though.

I live in Brighton(ish) and so does the other poster Hot Bring (hence his username anagram!). But I have a few free parking places I know about when shopping there.