Popla letter help - ukpc ltd mcdonalds

driver10

Hi, i am looking for some help with my POPLA letter.

A little background, i recieved a 'charge notice' from UKPC ltd for parking in Mcdonalds carpark (salford) and overstaying. I actually met a colleague there and we orderd then ate in her car (off the site) I wasnt aware of any parking restrictions. The charge notice had photos of my car entering and leaving the carpark. I stayed for 1hr 53mins which they state is 'in violation of terms and conditions displayed on signage' Further in the charge notice its states 'These were clearly prominently displayed on the carpark signs; and were agreed by the driver when the vehicle was parked on our clients land' I didnt agree to anything!!

I read the stickies and sent standard letter for first appeal. That was yesterday and i received their response same day rejecting appeal and provided POPLA number. I have seached around the forum and had ago at my POPLA letter. Was just hoping for some critique.
My questions : how do I know ANPR was used? do I need to let UKPC know i am appealing to POPLA? should I try and find some previous cases where UKPC has lost to add in to strengthen my case

Any help greatly appreciated.

Dear POPLA,
I am the registered keeper & this is my appeal:

1) The Charge is not a genuine pre-estimate of loss
The demand for a payment of £100 (discounted to £50 if paid within 14 days) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner in a free carpark. The keeper declares that the charge is punitive and therefore an unenforceable penalty.
The BPA code of practice states: 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. I require UKPC Ltd to provide a detailed breakdown of how the amount of the “charge” was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business (such as the erection of signage, the provision of back office services, the maintenance of ANPR cameras, cost of membership of the BPA Ltd etc.) may not be included in this pre-estimate of loss."
Their sign states the charge is for 'not fully complying with the conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park was not even half full, therefore there was no loss of potential income in a free car park.
This Operator cannot demonstrate any initial quantifiable loss. 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. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would 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.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

2) Lack of signage - no contract with driver
I believe the signs and any core parking terms UKPC Ltd are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in.
I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park and any consequences for breach, as was found in a comparable camera-reliant car park in the case of Excel Parking Services Ltd v Martin Cutts, 2011.
UKPC Ltd 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.
In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked oftenbefore. He said:
“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”
So in addition, because the signs fail to properly inform drivers of the full terms & conditions in a very prominent place at a low enough height at the entrance, the elements of a contract have not been met. Any alleged contract would 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.
UKPC Ltd do not provide signage of sufficient written text size or at a suitable height to be read from the vehicle at the entrance or at any location on the premises. They may claim that generic signage is displayed around the car park on poles but this does not meet the requirements for consideration when forming the alleged contract. I suggest UKPC Ltd need clear signs and means for a driver to read the full terms and to make payment with a machine at the entrance to the car park if they wish to try to establish a contract requiring payment in exchange for a parking space here.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

3) Lack of standing/authority from landowner
UKPC Ltd has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put UKPC Ltd to strict proof of the contract terms with the actual landowner (not a lessee or agent). UKPC Ltd have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that UKPC Ltd are entitled to pursue these charges in their own right.
I require UKPC Ltd to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

4. Notice to Keeper not properly given under POFA 2012 – no keeper liability
Further to the above points, the notice I have received, as the registered owner of the vehicle, makes it clear that UK Parking Control Ltd is relying on Schedule 4 of the Protection of Freedoms Act 2012. UK Parking Control Ltd has failed to comply in the wording of their Notice to Keeper since they have failed to identify the ‘Creditor’. This may, in law, be UK Parking Control Ltd or its client, its debt collecting agent, or the landowner or indeed some other party. Schedule 4 of the Act requires a Notice to Keeper to have the words to the effect that ‘The Creditor is...”.
The wording of Paragraph 9(2)(h) of Schedule 4 of the Act does not just indicate that the creditor must be named/assumed, but “identified”. The owner of the vehicle is entitled to know the identity of the party with whom the driver has allegedly contracted. In failing to specifically identify the ‘Creditor’ in its Notice to Keeper, UK Parking Control Ltd has failed to establish keeper liability. In this case, the Notice to Keeper has not been correctly ‘given’ under POFA2012 and so it is a nullity. In a previous ruling, POPLA Assessor Matthew Shaw stated that the validity of a Notice to Keeper is ‘fundamental to establishing liability’ for a parking charge, stating: ‘where a Notice is to be relied upon to establish liability it must, as with any statutory provision, comply with the Act.’
I therefore respectfully request that my appeal is upheld and the charge dismissed.

5. ANPR accuracy
Under paragraph 21.3 of the BPA Code of Practice, it requires parking companies to make sure ANPR equipment is maintained and in correct working order. I require ParkingEye to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important as the parking charge issued is founded entirety on 2 photos of my vehicle entering the car park and leaving the car park at specific times. It is vital that UKPC Ltd produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
So, in addition to showing their maintenance records, I require ParkingEye to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put ParkingEye to strict proof to the contrary.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

6. ANPR usage
Under paragraph 21.1 of the BPA Code of Practice it states 'You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for'
ParkingEye fail to operate the system in a 'reasonable, consistent and transparent manner'. As ParkingEye place signs too high to see on arrival, there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret high-up spy camera - far from 'transparent' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

7. Unlawful Penalty Charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this “charge” is an attempt at extorting an unlawful charge in lieu of 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 could state the letter as an invoice or request for monies, but chooses to use the wording “CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.
I therefore respectfully request that my appeal is upheld and the charge dismissed.
Regards
name

Redx

the arrival and departure pictures will probably be anpr, so allege it anyway

no you dont need to tell the PPC, popla will send them your appeal

yes you should, so use the forum search box and suitable search words, also click on the link in post #3 of the newbies thread and check there too

Dee140157

You have all the main points covered though.
Look for a few winning UKPC templates and see if there is anything to tweak, but otherwise an ok appeal.

driver10

Hi thanks for your help. I have competed a few tweaks based on other forum posts. Final draft : any suggestions appreciated.

Dear POPLA Assessor,

UKPC verification code xxxxxxxxxx

I am the registered keeper and I wish to appeal a recent parking charge from UKPC. I believe I am not liable for the parking charge on the following grounds:

1. The Charge is not a genuine pre-estimate of loss
2. Lack of signage - no contract with driver
3. Lack of standing/authority from landowner
4. Notice to Keeper not properly given under POFA 2012
5. ANPR accuracy
6. ANPR usage
7. Unlawful Penalty Charge

1. The Charge is not a genuine pre-estimate of loss
The demand for a payment of £100 (discounted to £50 if paid within 14 days) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner in a free carpark. The keeper declares that the charge is punitive and therefore an unenforceable penalty. Further, The Notice from UKPC alleges that a breach of the terms and conditions of parking have occurred and so the charge levied must be damages that UKPC are seeking in redress. But this car park is free and there is no provision for the purchasing of a ticket or any other means for paying for parking. There was no damage nor obstruction caused so there can be no loss arising from the incident.
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. I require UKPC Ltd to provide a detailed breakdown of how the amount of the “charge” was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business (such as the erection of signage, the provision of back office services, the maintenance of ANPR cameras, cost of membership of the BPA Ltd etc.) may not be included in this pre-estimate of loss."
Their sign states the charge is for 'not fully complying with the conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park was not even half full, therefore there was no loss of potential income in a free car park.
This Operator cannot demonstrate any initial quantifiable loss. 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. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would 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 Office of Fair Trading has stated to the BPA Ltd 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. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event, so this charge breaches the code and is unenforceable.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

2. Lack of signage - no contract with driver
I believe the signs and any core parking terms UKPC Ltd are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in.
I contend that the signs on this land (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])
UKPC Ltd 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.
In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked oftenbefore. He said:
“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”
So in addition, because the signs fail to properly inform drivers of the full terms & conditions in a very prominent place at a low enough height at the entrance, the elements of a contract have not been met. Any alleged contract would 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.
UKPC Ltd do not provide signage of sufficient written text size or at a suitable height to be read from the vehicle at the entrance or at any location on the premises. They may claim that generic signage is displayed around the car park on poles but this does not meet the requirements for consideration when forming the alleged contract. I suggest UKPC Ltd need clear signs and means for a driver to read the full terms and to make payment with a machine at the entrance to the car park if they wish to try to establish a contract requiring payment in exchange for a parking space here.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

3. Lack of standing/authority from landowner
UKPC Ltd has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right. UKPC do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Under the BPA CoP Section 7, a landowner contract must specifically allow UKPC to pursue charges in their own name in the courts and grant them the right to form contracts with drivers.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put UKPC Ltd to strict proof of the contract terms with the actual landowner (not a lessee or agent). UKPC Ltd have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that UKPC Ltd are entitled to pursue these charges in their own right.
I require UKPC Ltd to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.
In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013. District Judge Jenkins dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and the landowner, and didn’t create any contractual relationship with motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred with the view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. I submit that this applies in my case as well because the parking contract - if one is even produced - is a similar business agreement between an agent and landowner, nothing more.
If UKPC produce a 'witness statement' I contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms, or, indeed is even an employee of the landowner. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor legal standing.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

4. Notice to Keeper not properly given under POFA 2012 – no keeper liability
Under the terms of the Protection of Freedoms Act, specifically Schedule 4, paragraphs 8 and 9, UKPC must identify the creditor who is legally entitled to recover parking charges on their Notice to Keeper. They have failed to do so, and so they have no right under the PoFA to reclaim parking charges from the keeper of the vehicle. In a previous ruling, POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 8 or 9 it must, as with any statutory provision, comply with the Act. As the Notice was not compliant with the Act, it was not properly issued. UK Parking Control Ltd has failed to comply in the wording of their Notice to Keeper since they have failed to identify the ‘Creditor’. This may, in law, be UK Parking Control Ltd or its client, its debt collecting agent, or the landowner or indeed some other party. Schedule 4 of the Act requires a Notice to Keeper to have the words to the effect that ‘The Creditor is...”.
The wording of Paragraph 9(2)(h) of Schedule 4 of the Act does not just indicate that the creditor must be named/assumed, but “identified”. The owner of the vehicle is entitled to know the identity of the party with whom the driver has allegedly contracted. In failing to specifically identify the ‘Creditor’ in its Notice to Keeper, UK Parking Control Ltd has failed to establish keeper liability. In this case, the Notice to Keeper has not been correctly ‘given’ under POFA2012 and so it is a nullity.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

5. ANPR accuracy
Under paragraph 21.3 of the BPA Code of Practice, it requires parking companies to make sure ANPR equipment is maintained and in correct working order. I require ParkingEye to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important as the parking charge issued is founded entirety on 2 photos of my vehicle entering the car park and leaving the car park at specific times. It is vital that UKPC Ltd produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
So, in addition to showing their maintenance records, I require ParkingEye to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put ParkingEye to strict proof to the contrary.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

6. ANPR usage
Under paragraph 21.1 of the BPA Code of Practice it states 'You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for'
ParkingEye fail to operate the system in a 'reasonable, consistent and transparent manner'. As ParkingEye place signs too high to see on arrival, there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret high-up spy camera - far from 'transparent' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

7. Unlawful Penalty Charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this “charge” is an attempt at dressing up a penalty to impersonate a parking ticket, as was found in the case of Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011) and in Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).
The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.This transparently punitive charge by UKPC is a revenue-raising exercise and is therefore unenforceable in law. UKPC's own website is damning in this regard;
From the UKPC website, July 2014:
''frequently asked questions:
How much would it cost us to use your parking management services? Nothing at all! We provide parking management services to our clients free of charge."
I therefore respectfully request that my appeal is upheld and the charge dismissed.

So in conclusion, this is (as is proven by the Operator's own website) a revenue-raising scheme disguised as a 'parking ticket' - so in fact it is an unenforceable penalty.
I respectfully request the POPLA assessor to consider my points and order that this charge be cancelled.

Yours faithfully,


xxxxxx


THE REGISTERED KEEPER

Dee140157

As with a previous post, a very small point, I don't see the point in saying throughout the words

I therefore respectfully request that my appeal is upheld and the charge dismissed.

I would put it just once at the end.

As I haven't seen your PCN, I don't know if the NTK was POFA complaint or not, so if you think it is, leave it in. If you are only adding it because you have read it and have not compared the NTK to POFA12 , then I would take it out.

But apart from that, skim reading the appeal it now loos good to go.

ezerscrooge

Section 5 and 6 on the ANPR needs re-reading. You've referred to Parking Eye.

Section 5 - I require ParkingEye to provide records

Section 6 - ParkingEye fail to operate the system in a 'reasonable, consistent and transparent manner'. As ParkingEye place signs too high

Might be worth having the Beavis rebutal in as well as UKPC claim commercial justification for their charges - it will slot in at the end of your No GPEOL statements...

[FONT=&quot]Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]This supports the principle 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 reasonably 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.''[/FONT]
.

Dee140157

I missed that one. Oops. Good spot.

driver10

Hi, many thanks for the replies. I've made further amendments based on the advice given. Now just unsure if my notice constitutes a POFA complaint . The charge notice I recieved in the post is the same as is in this link post #22

forums.moneysavingexpert.com/showthread.php?t=4801929&page=2

Should I leave para 4 'notice to keeper not properly given' in my letter or remove that part completely.

Heres the letter with amendments. Thanks again I really appreciate all the great advice I have been given.

Dear POPLA Assessor,

UKPC verification code xxxxxxxxxx

I am the registered keeper and I wish to appeal a recent parking charge from UKPC. I believe I am not liable for the parking charge on the following grounds:
1. The Charge is not a genuine pre-estimate of loss
2. Lack of signage - no contract with driver
3. Lack of standing/authority from landowner
4. Notice to Keeper not properly given under POFA 2012
5. ANPR accuracy
6. ANPR usage
7. Unlawful Penalty Charge

1. The Charge is not a genuine pre-estimate of loss
The demand for a payment of £100 (discounted to £50 if paid within 14 days) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner in a free carpark. The keeper declares that the charge is punitive and therefore an unenforceable penalty. Further, The Notice from UKPC alleges that a breach of the terms and conditions of parking have occurred and so the charge levied must be damages that UKPC are seeking in redress. But this car park is free and there is no provision for the purchasing of a ticket or any other means for paying for parking. There was no damage nor obstruction caused so there can be no loss arising from the incident.
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. I require UKPC Ltd to provide a detailed breakdown of how the amount of the “charge” was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business (such as the erection of signage, the provision of back office services, the maintenance of ANPR cameras, cost of membership of the BPA Ltd etc.) may not be included in this pre-estimate of loss."
Their sign states the charge is for 'not fully complying with the conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park was not even half full, therefore there was no loss of potential income in a free car park.
This Operator cannot demonstrate any initial quantifiable loss. 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. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would 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 Office of Fair Trading has stated to the BPA Ltd 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. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event, so this charge breaches the code and is unenforceable.
Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:
''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.
This supports the principle 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 reasonably 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.''

2. Lack of signage - no contract with driver
I believe the signs and any core parking terms UKPC Ltd are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in.
I contend that the signs on this land (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])
UKPC Ltd 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.
In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked oftenbefore. He said:
“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”
So in addition, because the signs fail to properly inform drivers of the full terms & conditions in a very prominent place at a low enough height at the entrance, the elements of a contract have not been met. Any alleged contract would 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.
UKPC Ltd do not provide signage of sufficient written text size or at a suitable height to be read from the vehicle at the entrance or at any location on the premises. They may claim that generic signage is displayed around the car park on poles but this does not meet the requirements for consideration when forming the alleged contract. I suggest UKPC Ltd need clear signs and means for a driver to read the full terms and to make payment with a machine at the entrance to the car park if they wish to try to establish a contract requiring payment in exchange for a parking space here.

3. Lack of standing/authority from landowner
UKPC Ltd has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right. UKPC do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Under the BPA CoP Section 7, a landowner contract must specifically allow UKPC to pursue charges in their own name in the courts and grant them the right to form contracts with drivers.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put UKPC Ltd to strict proof of the contract terms with the actual landowner (not a lessee or agent). UKPC Ltd have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that UKPC Ltd are entitled to pursue these charges in their own right.
I require UKPC Ltd to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.
In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013. District Judge Jenkins dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and the landowner, and didn’t create any contractual relationship with motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred with the view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. I submit that this applies in my case as well because the parking contract - if one is even produced - is a similar business agreement between an agent and landowner, nothing more.
If UKPC produce a 'witness statement' I contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms, or, indeed is even an employee of the landowner. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor legal standing.

4. Notice to Keeper not properly given under POFA 2012 – no keeper liability
Under the terms of the Protection of Freedoms Act, specifically Schedule 4, paragraphs 8 and 9, UKPC must identify the creditor who is legally entitled to recover parking charges on their Notice to Keeper. They have failed to do so, and so they have no right under the PoFA to reclaim parking charges from the keeper of the vehicle. In a previous ruling, POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 8 or 9 it must, as with any statutory provision, comply with the Act. As the Notice was not compliant with the Act, it was not properly issued. UK Parking Control Ltd has failed to comply in the wording of their Notice to Keeper since they have failed to identify the ‘Creditor’. This may, in law, be UK Parking Control Ltd or its client, its debt collecting agent, or the landowner or indeed some other party. Schedule 4 of the Act requires a Notice to Keeper to have the words to the effect that ‘The Creditor is...”.
The wording of Paragraph 9(2)(h) of Schedule 4 of the Act does not just indicate that the creditor must be named/assumed, but “identified”. The owner of the vehicle is entitled to know the identity of the party with whom the driver has allegedly contracted. In failing to specifically identify the ‘Creditor’ in its Notice to Keeper, UK Parking Control Ltd has failed to establish keeper liability. In this case, the Notice to Keeper has not been correctly ‘given’ under POFA2012 and so it is a nullity.

5. ANPR accuracy
Under paragraph 21.3 of the BPA Code of Practice, it requires parking companies to make sure ANPR equipment is maintained and in correct working order. I require UKPC Ltd to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important as the parking charge issued is founded entirety on 2 photos of my vehicle entering the car park and leaving the car park at specific times. It is vital that UKPC Ltd produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
So, in addition to showing their maintenance records, I require UKPC Ltd to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put UKPC Ltd to strict proof to the contrary.

6. ANPR usage
Under paragraph 21.1 of the BPA Code of Practice it states 'You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for'
UKPC Ltd fail to operate the system in a 'reasonable, consistent and transparent manner'. As UKPC Ltd place signs too high to see on arrival, there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret high-up spy camera - far from 'transparent' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.

7. Unlawful Penalty Charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this “charge” is an attempt at dressing up a penalty to impersonate a parking ticket, as was found in the case of Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011) and in Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).
The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.This transparently punitive charge by UKPC is a revenue-raising exercise and is therefore unenforceable in law. UKPC's own website is damning in this regard;
From the UKPC website, July 2014:
''frequently asked questions:
How much would it cost us to use your parking management services? Nothing at all! We provide parking management services to our clients free of charge."
So in conclusion, this is (as is proven by the Operator's own website) a revenue-raising scheme disguised as a 'parking ticket' - so in fact it is an unenforceable penalty.
I respectfully request the POPLA assessor to consider my points and order that this charge be cancelled.

Yours faithfully,


xxxxxx


THE REGISTERED KEEPER

Dee140157

If it is the same as the one in post 22 then in post 23 Coupon-Mad who is supreme expert lists all the way in which it is non complaint, you can refer to these in your appeal as well what you have written if you wish.

But to be honest you will probably win on no. GPEOL!

If you have made all the all the changes suggested and corrected any PPC name flaws it is good to go.

But I do suggest you leave a line between each paragraph as this makes it easier to read.

driver10

Hi, just a quick update. Having read a few other posts i went into mcdonalds thismorining and spoke with the manager explaining the situation. He agreed to contact UKPC and get the ticket cancelled. I then got an email from Mcdonalds confirming UKPC has been contacted. Hopefully should be an end to it.
Just want to thank you all for your time and help with this.

Cheers.

Umkomaas

It will be more conclusive if you get written confirmation of the cancellation from UKPC, after all, it is their charge, not McDonald's.

You may or may not get anything from UKPC, so it is important you keep hold of that McD email, as an alleged debt can be referred to the Small Claims Court any time for up to six years.