LCP Parking Ticket

SteveDrums

Right you are, I'll go and draft something and see what you think.

SteveDrums

Ok their major points are here, just finishing my draft appeal.

A. The charge is issued in respect of a contractual fee for breaching our terms and conditions in the car park known as Harlesden Plaza. By remaining in the car park for 38 minutes 36 seconds the Driver of your vehicle agreed to pay this sum if they failed to comply with the clearly advertised Terms and Conditions.

38 minutes 36 seconds is more than ample time for the driver to consider our offer and decide whether or not they intend to comply or leave the car park immediately. By the same measure, 38 minutes is sufficient time to read the numerous signs and notices we have dotted throughout and at the entrances to the car park.

B. LCP are the Leaseholders of the car park, this can be verified with the Land Registry using our title number NGL820674 – we thus have ”Locus Standi” to form contracts with drivers making use of our facilities.

C. Please refer to the enclosures with copies and images of our numerous signs throughout and at the entrances to the car park, we enclose a signage plan for ease of reference.

1. Addressed in A above. This was made clear in the Notice to Keeper, a copy of which is enclosed for your reference. The charge is issued as a deterrent to ensure that LCP can provide a parking space for users that have a need to park and are willing to comply with the Terms and Conditions of the facility. It is thus not punitive nor unfair, this was accepted by the Driver of your vehicle.

2. Addressed in point B above.

3. Also addressed in point A above, to re-iterate 38 minutes is ample time to consider whether the Driver wishes to comply with the Terms and conditions of the property.

4. Addressed in point C above. Please refer to the pictures of the entry/exit from/to Tavistock Road clearly showing the BPA endorsed Car Park entrance signs, our ANPR camera signs, the Tariff boards and payment machines; and a picture taken from within the car park facing Tavistock Road clearly showing the ‘Number Plate Controlled Car Park’ sign, the Terms and Conditions, the ‘Have You Paid?’ sign, the ‘Pay Here’ sign above the 2 payment machines. You would have driven past the signs and Tariff board and payment machines upon entering indicating this is a Pay & Display car park.

5. Should you wish to view this letter as rejection of your generic plagiarised appeal the verification code xxxx is to be used for submission of your appeal to POPLA, however please be advised that should POPLA refuse your appeal you will have foregone the opportunity to settle this at the reduced rate of £50.

And a bit you might enjoy;
It is noted that we receive a nominal amount of appeals similar to yours which have blatantly been copied from various sources on the internet and relied upon as the basis of the appeal. We therefore invite you to either; resubmit a specific appeal for consideration to LCP clarifying why the driver of your vehicle was parked in our facility for 38 minutes 36 seconds without making payment at any of the 4 machines or using Dash Park or settle this charge at the reduced rate, which has been extended for a further 14 days from the date of this letter in accordance with our Code of Practice.



I'm just tidying up my draft I'll post it here in a moment.

Dee140157

Remove your POPLA code now. Never give that information on a public forum.

SteveDrums

OK draft one...... Going to have a rest from this for a bit so fire away, all advice hugely appreciated.

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I would like to appeal this PCN from LCP at Harlesden Plaza, on the following grounds:

1 Notice to Keeper - not properly given under POFA 2012. No keeper liability.
2 No Genuine Pre-estimate of Loss.
3 Unclear and unlit signage.
4 ANPR Accuracy and Compliance.


1. NOTICE TO KEEPER - NOT PROPERLY GIVEN UNDER POFA 2012
The Notice to Keeper (NTK) letter omits the required information if it were to establish 'keeper liability' under the POFA 2012. LCP have not included all the below required wording from paragraph 9, Schedule 4, of POFA 2012, namely: ''9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met. (2)The notice must—
(b)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;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made.''

In this case, the NTK has not been correctly 'given' under POFA2012 and due to the many omissions, it is a nullity. As the driver has not been identified for this parking event, LCP do not have the right party for this PCN since they have failed to establish 'keeper liability' which is fundamental to their case against me.

2 NO GENUINE PRE-ESTIMATE OF LOSS


The demand for a payment of £100 (discounted to £50 if paid within 14 days, returned to £100 and reduced once more following appeal) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. 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 LCP 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.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

The Department for Transport guidelines state that:
"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."

In addition, the Office of Fair Trading information to the BPA about parking charges states that these are not automatically recoverable: ''The OFT expressed the view that a parking charge will not automatically be recoverable, simply because it is stated to be a parking charge. It cannot be used to create a loss where none exists.”.

I am aware from previous POPLA findings this same site that this Operator has not proved the above to be a genuine pre-estimate of loss. On 13/12/13 POPLA Assessor Sakib Chowdhury stated in a decision about the same issue at Harlesden Plaza, that ''The amount put forward that could amount to a genuine pre-estimate of loss, does not amount to a substantial proportion of even the reduced charge. Consequently, I must find that the Operator has failed to produce sufficient evidence to demonstrate that the parking charge is a genuine pre-estimate of loss.''


LCP has not previously provided either myself or POPLA with a written calculation of their losses prior to their decision to set their PCNs at a fixed sum of £100 (or £50) at this site. They cannot now change this figure in an attempt to re-write their 'genuine pre-estimate of loss'. A new calculation after the charges were set at £100 (or £50) would neither be genuine nor a 'pre-estimate' and would merely be an attempt to come up with a version which POPLA might accept. This would be contrary to the principles of fairness, transparency and good faith under the UTCCRs - As having requested the same and not received any reference to the request in the reply to my appeal. I can only assume that LCP cannot provide a breakdown that will meet the requested £100 (or £50) sum and therefore cannot accept that this is fair and just.

3 UNCLEAR AND UNLIT SIGNAGE - NO CONTRACT MADE WITH THE DRIVER

LCP have sent me the alleged 'full car park terms and conditions' which their website says are 'available upon request' but there is no evidence that these full t&cs are on display on site for the driver to have seen and read.

There are no low-positioned, clear, illuminated signs on entry to this car park which would have communicated any terms of parking to a driver. So the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied. LCP failed to properly and clearly warn/inform the driver of the terms 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.

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:
“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.”
LCP have quoted the Beavis case in their letter. However this is going to the Court of Appeal now and was a decision in small claims only, full of caveats and no case law whatsoever since there is nothing that supports a penalty in a consumer contract. This would be a breach of the UTCCRs.

4. ANPR: ACCURACY & COMPLIANCE
I call into question the ANPR system accuracy and compliance, since this car park has no parking staff on site. So I require the Operator to present records which prove the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer and generally maintained to ensure the accuracy of the data. BPA CoP 21.2 and 21.3 make these documented checks a requirement.

The BPA Code of Practice also says:
21.1 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.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras.''

No signs at this car park tell drivers how the data captured by ANPR cameras will be used, so the system does not operate in a 'reasonable, consistent and transparent manner'. I contend LCP have failed to comply with the ICO terms of registration and are in breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when it is not the case). This Operator is put to strict proof to the contrary as they have not yet shown me a sign which covers this 'ANPR data use' requirement.



It is respectfully requested that this appeal is upheld and the charge dismissed.

SteveDrums

Dee140157 wrote: »

Remove your POPLA code now. Never give that information on a public forum.

!!!!, I thought I had......

SteveDrums

Hi, any advice on this please?

Dee140157

I'm a bit tired after a long day out, it in your keeper liability section (which I always find difficult to read) have you just quoted pofa12 and the fact that there are lots of omissions? Or have you identified the list of omissions which make the keeper not liable under POFA 12

To me it looks like the first, but should look like the second. POPLA do know what pofa12 is you just need to point put the parts that make the NTK not compliant.

The rest looks okay to me.

SteveDrums

Yes, you're right. I'll have re-jig. Thank you!

Coupon-mad

That's fine.


When lynneh then got LCP's 'POPLA evidence' ranting again about blatant templates, she emailed POPLA a rebuttal of their points which went like this (obviously don't copy it verbatim if LCP have said anything different or, for example, in their evidence in your case, if they don't use a 2011 old photo of an unlit sign under a lamp that's not on...):

In response to LCP's evidence and information, I would like to put forward the following points:

LCP haven't bothered to provide a full pre-estimate of loss so it's like the decision made by the POPLA assessor Sakib Chowdhury, in the previous case at Harlesden Plaza that I mentioned in my final draft of my appeal (the GPEOL calculation which LPC intended to rely upon at this site of £34.90, doesn't even add up to the £50 reduced charge)!

LCP have not shown the lights above the signs actually work, the 2011 picture is at dusk and yet the lights are off. LCP have only said 'one' of their signs was reflective so are we to guess which ones could be seen, as LCP's own photos show the car arrived in pitch darkness.

The blue & yellow sign would not have been seen by a driver going to the drive thru. The blue & yellow sign is above the P&D machines and not part of the drive-thru route.

The blue & yellow signs don't state what the amount of the parking charge even is. There is no certainty of terms.

The white sign says 'a PCN may' be issued. Then lower down 'a PCN will be issued' then again at the bottom 'a PCN may be issued'. There is no certainty of terms, so the doctrine of contra proferentem applies and the interpretation that most favours the consumer must prevail.

Conversely, the Burger King banner attached to the fence sets yet another set of terms (again unclear) saying that the area is for BK customers only (well that's fine as the driver was intending to buy a Burger meal). And that otherwise there is 'no stopping or waiting'. So,that would be a matter of trespass then would it? Clearly the £1.20 tariff does not apply to that area because the banner does not allow stopping or waiting. So what is it then, a tariff area or a no stopping zone - it can't be both.

The signs don't contain the full parking t&cs which seem to have been attached only to LCP's evidence here. That wording wasn't readable on any sign.

LCP has complained about the template appeal - which is contradictory when clearly their own POPLA evidence is a template!

SteveDrums

So, do you think that what I have is fine or I should rewrite the keeper liability section? - I have taken a break from this for a few days, life is a bit busy
at the moment.