POPLA appeal letter for No Waiting or Stopping

Chriswt

Guys,

Would someone be kind enough to check over my first attempt at a POPLA appeal letter just to see if I'm in the right ball park. Its a bit of a cut and paste job with some amendments inbetween.

The driver was performing a 3 point turn in the start of a yellow hatched area and stopped for 39 seconds before moving away. All the 'poor' signage was behind him in the middle of the hatched area and so you'd have to stop in a 'no stopping' area to read it!!!!

Many many thanks:...

APPEAL LETTER 1st ATTEMPT


POPLA Reference Number:
VRN:
PPC: Park Direct UK
PCN Ref:
Alleged Contravention Date & Time:
Date of PCN:

Dear POPLA Assessor,


As the registered keeper of the above stated vehicle I wish to appeal against the parking charge. I believe I am not liable for the parking charge on the following grounds:.

1. No parking event occurred - No contract with Driver
2. Lack of signage and no signs were seen/read - No contract with driver
3. NTK - no 'keeper liability'.
4. No proprietary interest in this land
5. The NTK states the charge is for 'breach' so must prove it is a GPEOL.
6. Unfair terms - Unenforceable Disguised Penalty

I received a Parking Charge Notice from Park Direct UK, reference ***** which alleges that the driver stopped or waited in a controlled area at 17:39 resulting in a PCN. Despite the contravention time being stated as 16:19 on the PCN the photographs provided taken 39 seconds apart are at 16:16:10 and 16:16:49 respectively.
I have detailed the grounds of my appeal below and would ask that all points are taken into consideration:

1. No parking event occurred - No contract with Driver
The driver entered XXXXXX Road, turned the car around, allowed time for the road ahead to clear, left within 39 seconds and saw no signs. There was no intention to parkand no agreement to pay £100 for the privilege of performing a legitimate manoeuvre. Terms are only imported into a contract if they are clear & so prominent that the party 'must' have known of it & agreed. This charge is spurious and the signage wording which I have subsequently checked is unclear & dresses up an obvious deterrent (really a penalty) as a 'contractual' fee. It is not; see point 5.

2. Lack of signage and no signs were seen/read - No contract with driver
Following the receipt of the charge, I have visited the site and the signage in this controlled area is inadequate. The sign is not clearly readable from road which is further evidenced in the photograph time stamped XX:XX:XX on the PCN which clearly shows the sign hidden out of view of the driver and covered by overhanging foliage. Furthermore the driver would have to stop within the controlled area in order to attempt to read and understand it. I put Park Direct UK to strict proof otherwise; as well as a site map they must show legibility from road. There is no entrance sign to the controlled area, it is hidden from the sign is not prominent & not reflective. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign ; there was no consideration/acceptance and no contract agreed between the parties.

3. NTK - no 'keeper liability'.
The NTK fails to identify the 'creditor' and fails to state a 'period of parking' (there was no parking!) so it does not meet the requirements of POFA 2012. It is not for me to guess who the creditor is. It could be 'Park Direct UK 'or 'Park Direct UK Ltd' (both legal names are on the NTK), or alternatively the creditor could be their client, or the landowner, or another party.

There is no 'keeper liability' from a fundamentally flawed NTK and POFA 2012 only applies to parking events. This was not a parking event at all, it was an example of Park Direct's well documented (in the national press) sharp practice in taking photos of any vehicle which drives through/turns around near their operative with their mobile phone camera, then sending out speculative demands.

4. No proprietary interest in this land
I put Park Direct UK Ltd to strict proof of their specific BPA CoP-compliant contract wording. If the client is a managing agent, I put this Operator to strict proof that the actual landholder authorised the managing agent to grant them 'landholder rights to sue in their own name'. I am not merely saying that I think this Operator has no authority to issue PCNs -- anyone could send a letter out - I am stating that this Operator's contract does not grant them any legal standing to enforce/pursue the matter themselves in the courts.A site agreement or witness statement will not suffice because that will not be strict proof to rebut my assertion that Park Direct UK have no contract which assigns rights to pursue PCNs in the courts in their own name nor to form contracts with drivers in their own right.

5. The NTK states the charge is for 'breach' so must prove it is a GPEOL.
The legal document (the postal PCN which serves as the Notice to Keeper) refers to 'contravention'. In addition, in their rejection letter ParkDirect UK have described the event as a 'breach of contract'. This is really about breach of contract, so loss must be shown. This is a road and as such, a car stopping causes no obstruction, no breach of signed terms at that spot and certainly no loss to the landowner, retailers or this Operator. If ParkDirect UK had intended to create a 'no stopping/waiting zone' then as was explained by the Lead Adjudicator in the POPLA Annual Report 2013, the area must be clearly signed as a no-stopping zone (e.g. double red lines or large yellow hatching or yellow box and adjacent clear and lit signage stating 'no stopping/loading').

Therefore, this Operator cannot demonstrate any initial quantifiable loss caused by the car being stationary in that section of the road for a few minutes, in order that the driver to clear the confusion, turn around on the road and find an alternate route.

The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. The Operator has stated that if there were no breaches, their 'costs' would not exist but in looking at their list of heads on the rejection letter, the opposite is true. They have listed normal operational costs and tax-deductible back office functions and no initial loss has been shown from which any other costs could possibly flow as a direct consequence of this parking event. The Operator would in fact have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

The demand for a payment of £100 is thus punitive, unreasonable, exceeds an appropriate amount (off which there is none as it was a no waiting/stopping area), and has no relationship to the loss that would have been suffered by the Landowner. The keeper declares that the charge is punitive and is not a genuine pre-estimate of loss and therefore an unenforceable penalty.

The BPA Code of Practice states:

“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.

6. Unfair terms - Unenforceable Disguised Penalty
The sign & the NTK are unclear, ambiguous & contradictory. On the NTK the sum is extremely hard to find, hidden in small print on the back! It is stated as a 'contravention' for 'breaching the terms' and this is repeated in the rejection. Yet the sign misleadingly alleges a 'contractual' sum. If so, there would be a time-limited stay, a payment mechanism and a VAT invoice. There is none. This is a disguised penalty. Terms must be clear otherwise the interpretation that favours the consumer applies.

To this end I respectfully request that my appeal be upheld and the PCN cancelled.