Appeal rejected by ppc, how do I write appeal to POPLAR, please help !!

Latte-san

Hello everyone

I Received PPN from park watch for enter no access area on 15/07/2014 at one stop perry Barr shopping centre.
I appeal to them with template from this forum, and yesterday I got reply, they have rejected my appeal.

I shall appeal to POPLA, but I'm not sure what should I write to appeal , please any advice!!


Sorry I wasn't allowed to post image attachment as I'm new user.


Email received yesterday

They gave a verification number, is this equal to POPLA number?



"Thank you for your appeal letter regarding the issue of the above parking charge notice.

After reviewing the information provided within your appeal letter and the photographic evidence that was taken in support of the issued PCN, and although we have taken into consideration the mitigation that you have provided, although factually incorrect, we have decided that the parking charge was correctly issued for failing to comply with the parking conditions at the One Stop Shopping Centre. There are signs clearly stating that vehicles should not enter the bus Interchange at any time, including two No Entry signs, A Buses Only Instruction, and four other high visibility warning signs.

You now have a number of options;

1. Pay the Parking Charge Notice at the prevailing price of £60.00 within 14 days. Please note that after this time the Parking Charge Notice will rise to £100.00
2. Make an appeal to POPLA – The Independent Appeals Service at popla.org.uk. Please be advised that if you opt for independent arbitration of your case, the Parking Charge Notice will increase to £100.00 should the decision be in our favour. Please quote verification number
3. If you choose to do nothing, we will seek to recover the monies owed to us via our debt recovery procedures and may proceed with Court action against you."

Redx

the verification number is the POPLA number

now check it is valid using the link in the newbies thread

then read post #3 of that thread and click on the link to find a suitable appeal, copy and paste into notepad and adapt it to suit

Dee140157

This is a new PPC to me. Finally found them as Defence Systems Ltd trading as Park Watch. A self ticketing organisation.

Did you appeal in response to a windscreen ticket or to a PCN through the post. And do you name yourself as driver (or say I) in appeal?

Other than that go as Redx said and look up good examples of appeals not based on mitigating circumstances.

Latte-san

I have pnc though post from them, I use template to appeal from top thread of page.

How stressful I can't post links of image, I'm not sure if I have chance to win. But I saw a similar case to mine, they get away from it at the end, so I might as well give shot.

Redx

you can use tinypics to host images etc and use a hxxp link

Fruitcake

If you follow the advice on here you WILL win. MSE has a 100% success rate at beating these PCNs provided people follow the advice given.


Have a read of the Newbies How to Win at POPLA section. This will tell you everything you need to do.

ezerscrooge

Have no doubts about winning/losing - you will beat these with a good POPLA appeal. Edit a winning appeal that comes close to matching your situation and post it on here before you send it.

Coupon-mad

Latte-san wrote: »

I have pnc though post from them, I use template to appeal from top thread of page.

How stressful I can't post links of image, I'm not sure if I have chance to win. But I saw a similar case to mine, they get away from it at the end, so I might as well give shot.

'Got away with it'? What do you mean? You haven't done anything wrong, no crime was committed! You'll no doubt have seen MSE have emailed members this week saying the whole industry is a ''cowboy industry'' so it is Defence Systems who are trying to get away with it.

So, once you have found a similar POPLA template from the NEWBIES thread, change the PPC name throughout to Defence Systems/Park Watch (and change any incorrect sentences obviously, such as about signage or if it was dark) and post it here for us to advise if you've missed anything.

Latte-san

hi everyone




thanks for all the replies, i have read some of template, i draft one base on copy and paste(sorry, i have severe grammatical issue. i always scared change lot of stuff, i only able to change little thing such as pcc name etc.) and i do apologies for any inappropriate statment base on my ignorance.

my case is simliar to one of forum memeber named 'SummerTime', im quote her word to describe my parking situation bit more detail.


'I received the first letter " Notice to owner" for going through a NO ENTRY at One Stop, Perry Barr..at the front where the buses go...


Says
"Defence Systems believe a parking charge is payable blar blar.."
The Driver has 14 days form service of this notice to the discountewd charges of £60. After this period the charge will increase to £100....
If no payment is made, the Defence Systems will forward me to a Debt Recovery Agency.
To pay "online " to paydefsys
or post : Pyt Dept, Suite 2, The Meadows, Church Road, Dodleston, Near Chester, CH4 9NG'


i found a replie on her post from 'HO87' listing following appeal ground.


1. The alleged location is not "relevant land" within the terms of the Protection of Freedoms Act.
2. The occurrence alleged is not a "parking event" within the terms of Protection of Freedoms Act.
3. The Notice to Owner was served outside the statutory timescale required by the Protection of Freedoms Act.
4. Defence Systems Ltd has no authority or lacks suffiicient authority to issue charges in relation to alleged occurrences.
5. Defence Systems Ltd signage or the signage they are intending to rely upon in this case is deficient in the sense that there are insufficient signs to be seen by motorists when entering the area and that in any event the signage is incapable of establishing the basis of a contract.
6. The charge Defence Systems Ltd are seeking to levy does not represent a genuine pre-estimate of their loss or that of their principal.
7. If, in the alternative, it is Defence Systems Ltd case that what they are seeking to enforce is a core contractual term then it is clear that the intention of such a term is to deter specified conduct and that the charge is therefore a penalty masquerading as a charge. Contractual penalties are not enforceable at law.
8. The existence of a contract between the driver at the time and Defence Systems Ltd is in all events denied.


so yes my draft is all base on some those points(and thanks to you HO87)




'The driver has not been identified, yet Defence System Ldt are claiming POFA 2012 registered keeper liability for this charge. The registered keeper is not liable for this charge as the road on front of one stop shopping centre is designated as a bus entry by the council and therefore roads within the front shopping centre are subject to council bylaws and so POFA 2012 does not apply. I put operator Defence System to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the council Authority that this land is not already covered by bylaws. '


this paragraphy, be honestly im not sure where the front bus entry is private land or council property, i try check online, no idea how to find that out. should i include this paragraphy within my appeal??


please if anyone dont mind giving read though!!




POPLA Verification Code:
Vehicle Registration:
Parking Company: Defence system Ldt
PCN Ref:
Car Park: One stop shopping centre
Alleged Contravention Date and Time:
Date of Notice:
Parking Charge Amount:





I am the registered keeper and I wish to appeal a recent parking charge from Defence System Ldt. I submit the points below to show that I am not liable for the parking charge:

• Not relevant Land under POFA 2012; no registered keeper liability
• The alleged contravention did not take place
• No landowner contract nor legal standing to form contracts or charge drivers
• Misleading and unclear signage
• Amount demanded is a penalty not a genuine pre estimate of loss
  

• The alleged location is not "relevant land" within the terms of the Protection of Freedoms Act.

The 'crime' described is by no stretch of the imagination 'parking' so they cannot invoke POFA 2012 in order to claim keeper liability. Here is the Schedule 4 of POFA 2012





Introductory
1 (1) This Schedule applies where:
(a) the driver of a vehicle is required by virtue of
a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land;


(2) The reference in the definition of “parking charge” to a sum in the nature of damages is to a sum of which adequate notice was given to drivers of vehicles (when the vehicle was parked on the relevant land).








The driver has not been identified, yet Defence System Ldt are claiming POFA 2012 registered keeper liability for this charge. The registered keeper is not liable for this charge as the road on front of one stop shopping centre is designated as a bus entry by the council and therefore roads within the front shopping centre are subject to council bylaws and so POFA 2012 does not apply. I put operator Defence System to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the council Authority that this land is not already covered by bylaws.

• The occurrence alleged is not a "parking event" within the terms of Protection of Freedoms Act.

The notice issued states ‘breach the terms and conditions of parking are liable to pay a charge.




The relevant part of the POFA states –(The notice must) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.

This paragraph in no way applies to the alleged contravention which is ‘entered no access area’. The Parking Charge Notice does not apply to the driver of the vehicle having entered a car park where charges apply nor does it refer to any specified period of parking where parking charges apply.

The photographs on the parking charge notice clearly show the car stopped on a road and not in a car park. There was no parking contravention at all. Defence System Ldt are not able to refer to a regulation that applies to stopping on the road. No contravention applicable to POFA actually took place.

• Defence Systems Ltd has no authority or lacks suffiicient authority to issue charges in relation to alleged occurrences.

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 nor agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons:

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract or 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 provides 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.

• Defence Systems Ltd signage or the signage they are intending to rely upon in this case is deficient in the sense that there are insufficient signs to be seen by motorists when entering the area and that in any event the signage is incapable of establishing the basis of a contract.

It possible for drivers to enter the car park without seeing the signs thus no contract can be formed between the driver and Defence System Ldt. The entrance sign is situated on the side of the road on a standard right hand UK car, this makes it difficult for the driver to see or read from inside the car regardless of which side of the road the car park is entered from. All these reasons make it possible for drivers to enter the car park without seeing the signage upon entering.




As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA 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.

• The charge Defence Systems Ltd are seeking to levy does not represent a genuine pre-estimate of their loss or that of their principal.
  
  The charge of £100 is being sought for an alleged breach of the parking terms namely “Entered no access area” consequently I contend, and the BPA code of practice states, that a charge for breach must be based on the genuine pre estimate of loss.
  
  The Office of Fair Trading has stated to the BPA that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.
  
  On the day in question there was neither 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".
  
  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 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. 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 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
  
  
  
  I request that my appeal is allowed.
  
  Yours faithfully,

Dee140157

This is a little confused and needs some work straightening it our. Be patient a while.

Dee140157

I have just done a few tweaks with mistakes in language and formatting and setting it out, but it is essentially the same.

A very good appeal IMHO.

I am the registered keeper and I wish to appeal a recent parking charge from Defence System Ltd. I submit the points below to show that I am not liable for the parking charge:

1) Not relevant Land under POFA 2012; no registered keeper liability
2) The alleged contravention did not take place
3) No landowner contract nor legal standing to form contracts or charge drivers
4) Misleading and unclear signage
5) Amount demanded is a penalty not a genuine pre estimate of loss

1) The location is not "relevant land" within the terms of the Protection of Freedoms Act and no registered keeper liability.

The incident described is by no stretch of the imagination 'parking' so they cannot invoke POFA 2012 in order to claim keeper liability.

The driver has not been identified, yet Defence System Ltd are claiming POFA 2012 registered keeper liability for this charge. The registered keeper is not liable for this charge as the road on front of one stop shopping centre is designated as a bus entry by the council and therefore roads within the front shopping centre are subject to council bylaws and so POFA 2012 does not apply. I put operator Defence System to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the council Authority that this land is not already covered by bylaws.

2) The alleged contravention did not take place

The occurrence alleged is not a "parking event" within the terms of Protection of Freedoms Act.

The relevant part of the POFA states –(The notice must) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.

This paragraph in no way applies to the alleged contravention which is ‘entered no access area’. The Parking Charge Notice does not apply to the driver of the vehicle having entered a car park where charges apply nor does it refer to any specified period of parking where parking charges apply.

There was no parking contravention at all. Defence System Ldt are not able to refer to a regulation that applies to stopping on the road. No contravention applicable to POFA actually took place.

3) No landowner contract nor legal standing to form contracts or charge drivers

Defence Systems Ltd has no authority or lacks suffiicient authority to issue charges in relation to alleged occurrences.

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 nor agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons:

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract or 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 provides 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.

4) Misleading and unclear signage

Defence Systems Ltd signage or the signage they are intending to rely upon in this case is deficient in the sense that there are insufficient signs to be seen by motorists when entering the area and that in any event the signage is incapable of establishing the basis of a contract.

It possible for drivers to enter this road without seeing the signs thus no contract can be formed between the driver and Defence System Ltd. The entrance sign is situated on the side of the road on a standard right hand UK car, this makes it difficult for the driver to see or read from inside the car regardless of which side of the road the car park is entered from. All these reasons make it possible for drivers to enter the car park without seeing the signage upon entering.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA 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.

5) Amount demanded is a penalty not a genuine pre estimate of loss

The charge Defence Systems Ltd are seeking to levy does not represent a genuine pre-estimate of their loss or that of their principal.

The charge of £100 is being sought for an alleged breach of the parking terms namely “Entered no access area” consequently I contend, and the BPA code of practice states, that a charge for breach must be based on the genuine pre estimate of loss.

The Office of Fair Trading has stated to the BPA that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.

On the day in question there was neither 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".

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 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. 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 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

I request that my appeal is allowed.

Yours faithfully,