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POPLA Apeal advice before sending
olie3146
Posts: 14 Forumite
Hi
I have just finished writing my appeal letter to POPLA for the 2 Charges I have received from New Generation Parking, and was hoping you would have a quick read through and see if you think it is okay.
back story : I received 2 parking charges for 2 separate days, stating the reason was for : Parked on Roadway.
I was clearly not parked on the roadway as it was a private parking complex with no fees and I was parked in the same place for a total of 3 days which clearly did not block any flow of traffic.
Please see my appeal letter below, and thank you in advance for any advice or corrections.
Dear POPLA,
I am the registered keeper of vehicle reg XXXX XXX and I contend that I am not liable for the parking charge and the vehicle was not improperly parked. I wish to appeal against the notice on the following grounds.
1) No Genuine Pre-Estimate of Loss.
The driver entered the car park, 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 was parked well off the main route of traffic, so if the driver was blocking the flow of traffic (which is denied, it is up to NGP to show as much) 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 charge is a penalty and not a genuine pre-estimate of loss
The charge demanded far exceeds any loss to the landowner. If it exceeds any loss, it becomes a penalty.
As this charge is being based on contractual ground and not that of loss or damage I believe the charge of £100 to be punitive and that the burden of proof is on the parking company to prove that it is not.
POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.
2) Lack of signage - no contract with driver
Due to their high position and the barely legible size of the smallprint, the signs in this car park are very hard to read. I contend that the signs and any core parking terms that NGP are relying upon were too small for the driver to discern when driving in and that the signs around the car park also fail to comply with the BPA Code of Practice. I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a free car park - and therefore I contend the elements of a contract were conspicuous by their absence.
Where the vehicle was parked there were no yellow lines, no visible markings on the road stating that there is no parking allowed and no signs on adjacent walls stating this.
The entrance sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.
3) Lack of Proprietary Interest & non-compliant Contract with Landowner
NGP' lack of title or assigned interest in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. Nor do they have the legal status at that site, which would give them any right to offer parking spaces on a contractual basis, as they are not the landowner and I have seen no evidence of a compliant contract with the landowner.
I put NGP to strict proof that they have a relevant, contemporaneous contract with the landowner that entitles them to pursue these charges in the courts in their own name as creditor (a requirement of the BPA Code of Practice). Any breach of the BPA Code of Practice means that 'registered keeper liability' has not been established, since full compliance is a pre-requisite of POFA 2012.
4) Business Rates and VAT would apply if the charges are contractual agreements for the provision of a service
NGP run a business in this car park for revenue and profit, I notice that their signage appears to try to create a contractual agreement for 'services'. I put NGP to strict proof that Business Rates are being paid to the Local Authority Valuation Office in respect of this 'contractual parking service' business, and that they are paying VAT to HM Revenue & Customs.
Might I also add that On the 21st of August I (the registered keeper) received my rejection letters from NGP (dated : 19th August 2014) with my POPLA Verification Codes : xxxxxxx and xxxxxxx, I checked both codes to find that they expired on the 31st August, giving me only 10 days from receipt of rejection letter to appeal.
These POPLA codes were generated on the 3rd of August, 18 days PRIOR to me receiving them. I have contacted BPA and demand sanction points to be awarded against the PPC company in question (New Generation Parking) for a major breach in the BPA AOS CoP
I respectfully ask the POPLA assessor to consider my points and order that this charge be cancelled.
I have just finished writing my appeal letter to POPLA for the 2 Charges I have received from New Generation Parking, and was hoping you would have a quick read through and see if you think it is okay.
back story : I received 2 parking charges for 2 separate days, stating the reason was for : Parked on Roadway.
I was clearly not parked on the roadway as it was a private parking complex with no fees and I was parked in the same place for a total of 3 days which clearly did not block any flow of traffic.
Please see my appeal letter below, and thank you in advance for any advice or corrections.
Dear POPLA,
I am the registered keeper of vehicle reg XXXX XXX and I contend that I am not liable for the parking charge and the vehicle was not improperly parked. I wish to appeal against the notice on the following grounds.
1) No Genuine Pre-Estimate of Loss.
The driver entered the car park, 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 was parked well off the main route of traffic, so if the driver was blocking the flow of traffic (which is denied, it is up to NGP to show as much) 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 charge is a penalty and not a genuine pre-estimate of loss
The charge demanded far exceeds any loss to the landowner. If it exceeds any loss, it becomes a penalty.
As this charge is being based on contractual ground and not that of loss or damage I believe the charge of £100 to be punitive and that the burden of proof is on the parking company to prove that it is not.
POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.
2) Lack of signage - no contract with driver
Due to their high position and the barely legible size of the smallprint, the signs in this car park are very hard to read. I contend that the signs and any core parking terms that NGP are relying upon were too small for the driver to discern when driving in and that the signs around the car park also fail to comply with the BPA Code of Practice. I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a free car park - and therefore I contend the elements of a contract were conspicuous by their absence.
Where the vehicle was parked there were no yellow lines, no visible markings on the road stating that there is no parking allowed and no signs on adjacent walls stating this.
The entrance sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.
3) Lack of Proprietary Interest & non-compliant Contract with Landowner
NGP' lack of title or assigned interest in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. Nor do they have the legal status at that site, which would give them any right to offer parking spaces on a contractual basis, as they are not the landowner and I have seen no evidence of a compliant contract with the landowner.
I put NGP to strict proof that they have a relevant, contemporaneous contract with the landowner that entitles them to pursue these charges in the courts in their own name as creditor (a requirement of the BPA Code of Practice). Any breach of the BPA Code of Practice means that 'registered keeper liability' has not been established, since full compliance is a pre-requisite of POFA 2012.
4) Business Rates and VAT would apply if the charges are contractual agreements for the provision of a service
NGP run a business in this car park for revenue and profit, I notice that their signage appears to try to create a contractual agreement for 'services'. I put NGP to strict proof that Business Rates are being paid to the Local Authority Valuation Office in respect of this 'contractual parking service' business, and that they are paying VAT to HM Revenue & Customs.
Might I also add that On the 21st of August I (the registered keeper) received my rejection letters from NGP (dated : 19th August 2014) with my POPLA Verification Codes : xxxxxxx and xxxxxxx, I checked both codes to find that they expired on the 31st August, giving me only 10 days from receipt of rejection letter to appeal.
These POPLA codes were generated on the 3rd of August, 18 days PRIOR to me receiving them. I have contacted BPA and demand sanction points to be awarded against the PPC company in question (New Generation Parking) for a major breach in the BPA AOS CoP
I respectfully ask the POPLA assessor to consider my points and order that this charge be cancelled.
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