Urgent advice needed! CPM rejected my appeal!

The_Deep

Indeed as CM says, In fact it is a good tactic.

Should the Memsahib acquire a ticket from a PPC, (she usually gets council tickets), I will appeal to them as a destitute OAP, relying on foods banks, and when the heartless barstards reject my plea, hit them with an appeal the size of the Old Testament.

MarcScot51

Can someone kind here check my appeal letter to POPLA, please?

A lot of duplication but I have also added a little extra points which I am not sure if they will help. Any constructive advice is appreciated. Thank you in advance!

Here goes....


Dear POPLA Assessor,

Re ********* parking charge notice ********
POPLA ref **********

I wish to appeal this charge on the following grounds;

1) No Genuine Pre Estimate of Loss
2) Contract with Landowner
3) Inadequate Signage
4) The alleged contravention did not occur
5) CPM was out of time in responding to my appeal
6) Common Law

1) No Genuine Pre Estimate of Loss

a) The Charge is not a contractual fee – it is a disguised breach

The Operator has attempted to avoid the necessity of having to justify a pre estimate of loss by stating that this is a contractually agreed fee on their signage. However on both the parking charge notice (which is described as exactly that, NOT an invoice for an agreed fee) and the rejection letter to my appeal they state that the charge is for having "breached" the terms and conditions of parking. In addition, the wording on their sign also states that "unauthorised parking may result in your vehicle being issued with a parking charge notice".

The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be consideration, it would have to mean that permission to park without a permit was given providing a fee was paid. Clearly permission to "park in breach" cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.

I would like to highlight a similar appeal against CPM where POPLA assessor Marina Kapour found that

"The charge must either be for damages as submitted by the Appellant, or for consideration - the price paid for the parking as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay provided he or she pay the charge. Clearly, permission to park 'in breach' is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge and so it cannot be consideration".

I would also highlight POPLA appeal reference 9663053967 where an initially refused appeal against the same Operator who again, made the same attempt to describe the charge as a contractually agreed fee on their signage was allowed by the Lead Adjudicator. It was found that the charge was a penalty and as such was not a genuine pre estimate of loss. I contend that 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 but is a disguised breach and must be shown to be a genuine pre estimate of loss to be enforceable.

b) The Charge is Not a Genuine Pre Estimate of Loss

The charge of £100 is being sought for an alleged breach of the parking terms namely “parking without displaying a valid permit” 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, a permit had been paid for, there was no 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".

As the charge in this case is the same lump sum whether the vehicle is parked for 10 minutes or for 24 hours and the same amount is charged for any alleged contravention, it is clear that this is punitive and that no consideration has been given to calculating a genuine pre estimate of loss in this case.

In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred to either the Operator or to the Landowner.

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 reasonable 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 nor proved to be a genuine pre estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.



2) Contract with Landowner – Lack of Locus Standi

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). Such document should be in the Operator’s possession and falls under the category of disclosable documents in the event of a challenge.

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.

3) Hidden and Inadequate Signage – No contract

The Operator seeks to rely on a signage in their pursuit of parking charges. The signage the Operator referred to was partly hiding behind a bush as shown in the photographic evidence supplied by the Operator. Furthermore, this signage is completely obscured should a car park in front of it. The BPA code of practice February 2014 clearly states that "Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand".

I assert that being unable to read the detail on the sign which was partly hidden behind a bush, breaches this code. If the Operator asserts the contrary, then I put the Operator to strict proof that the signage can be easily located and seen. Any photographic evidence submitted by the Operator must be taken at a similar time of night / light level as in my case, which was midnight, dark, windy and raining.


4) The alleged contravention did not occur.

The wording on CPM sign states that "unauthorised parking may result in your vehicle being issued with a parking charge notice".

I was a resident at Southdowns Park and was fully authorised to park at the parking space. There is nothing “unauthorised” with a resident parking a vehicle at resident’s car park.

The Operator also acknowledged in their letter that I was authorised to parked at the parking space: “I appreciate you have later proved that you are a permit holder however for a permit management scheme to run effectively it is imperative that permits are displayed in the windscreen at all times, this is the only way CPM wardens can ascertain which vehicles are authorised to park. If it were the case that a PCN was rescinded each time a permit was produced after the contravention, a permit scheme would be irrelevant and CPM would have no way of combating fraudulent use”.

If the Operator was concerned about fraudulent use of parking spaces at Southdowns Park, then I have proven beyond reasonable doubts that I wasn’t. The Operator is required to address the fact that I did have a valid parking permit and was fully authorised to park at the said parking space rather than coming up with a hypothetical situation about “fraudulent use” which is irrelevant to the subject of this appeal.

5) CPM did not comply to the BPA code of practice in regards to responding to my appeal

Point 37.3 of the BPA code of practice states that

“ 37.3 If you receive a challenge or appeal about the issue of a parking charge notice, you must stop work on processing the ticket immediately. You must not increase the charge until you have replied to the challenge. You must acknowledge or reply to the challenge within 14 days of receiving it. If at first you only acknowledge the challenge or appeal, you must accept or reject the challenge or appeal in writing within 35 days of receiving it. We may require you to show that you are keeping to these targets.”

No acknowledgement of the appeal was received and the letter rejecting my challenge wasn’t received until the 10/10/14, 92 days after my appeal was received on the 11/07/14. This delay is unreasonable, unjustified and unacceptable.

As their response was received way outside the 35 days time frame set by the British Parking Association Code of Practice for them to accept or reject a challenge in writing, I submit that that charge is nullified.
6) Common Law
It is common law that the duty to ensure the safety of residents and children overrides the duty to ensure the display of a parking permit. This point was raised in my first appeal to the Operator but they had completely failed to address or reply to this point. If the Operator contends otherwise, that the duty to display a parking permit overrides everything, including the safety of the residents and children, then I respectfully invite the Operator to produce the relevant authority or legislation. In the absence of such, common law prevails.
Conclusion

Based on the foregoing, I respectfully request POPLA to uphold my appeal against the PCN issued by CPM. I understand that I should receive the evidence pack from POPLA or CPM at least 7 days before the Appeal is heard, and that I will be given the opportunity to comment on the evidence provided by CPM prior to the hearing.

Yours faithfully,

MarcScot51

I will put up the picture of the signage when I have time - I think it is hidden behind a bush - do you think it is a good point to argue?

Coupon-mad

MarcScot51 wrote: »

I will put up the picture of the signage when I have time - I think it is hidden behind a bush - do you think it is a good point to argue?

Yes - and others will confirm about your POPLA appeal which I haven't time to skim read as I am at work.

bod1467

I can't see anything when clicking that link - just a blank page.

MarcScot51

https://500px.com/photo/86497107/untitled-by-alastair-sinclair?from=user_library

lets try again. photo of signage in link no.2

Coupon-mad

Wow they don't make the POPLA option very clear do they - an afterthought added at the end! Where did they give you the POPLA code, was it hidden somewhere or just on an attached form without further explanation?

The sign is placed very low and also (despite the light) obscured by bushes and leaves. However that won't help very much IMHO. The fact you have appealed - and admitted knowing a permit was needed (admitted you knew the terms to display a stupid pointless Permit, never mind the obscured signage) and that you were driving - was pretty naïve I am afraid as you have thrown away some solid appeal points already. At least the wording on the sign does help because you were not 'unauthorised'.

I would remove the common law point as POPLA can't consider that at all. I would add this point at the end:



Failure to comply with the Consumer Contracts(Information, Cancellation and Additional Payments) Regulations 2013

http://www.legislation.gov.uk/uksi/2013/3134/pdfs/uksi_20133134_en.pdf
These Regulations apply to all UK consumer contracts and this parking event occurred since the regulations took effect. This is a service contract* offered by written terms in print on a sign which is a means of distance communication (i.e. not a face-to-face contract in the simultaneous physical presence of the trader and the consumer; this was not even individually negotiated when Permits were sent out and foisted upon us).
In the UK Regulations:
* “service contract” means a contract, other than a sales contract, under which a trader supplies or agrees to supply a service to a consumer and the consumer pays or agrees to pay the price.''

From the EU Guidance behind the Directive upon which the UK Law is based:
http://ec.europa.eu/justice/consumer-marketing/files/crd_guidance_en.pdf
''Service contracts...should be included in the scope of this Directive, as well as contracts related to...the rental of accommodation for non-residential purposes.

For example, renting a parking space...is subject to the Directive. ''

This contract certainly purports to offer the daily 'rental' of/use of a parking space:
http://www.thefreedictionary.com/rent
RENT - 1. a. Payment, usually of an amount fixed by contract, made by a tenant at specified intervals in return for the right to occupy or use the property of another. b. A similar payment made for the use of a facility, equipment, or service provided by another.

Part 4 of these Regulations has provisions concerning protection from unsolicited sales and additional charges which have not been expressly agreed in advance (this was an unsolicited ‘service’ not expressly agreed at all, as the driver had a Permit, was not 'parking without permission' nor was the vehicle 'unauthorised', so this is a breach of the Regulations).
Regulation 40 provides that a consumer is not required to make payments in addition to those agreed for the trader’s main obligation, unless the consumer gave express consent before conclusion of the contract (no express agreement was made to pay anything as we are authorised permit holders so did not contravene by 'parking without permission').

Information breaches of these Regulations:
UKPC have failed to serve in a durable medium, ANY information as defined in these Regulations for Distance Contracts (i.e. not face-to-face) as set out in Article 13:
Information to be provided before making a distance contract (13)
—(1) Before the consumer is bound by a distance contract, the trader — (a) must give or make available to the consumer the information listed in Sch. 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used, and (b) if a right to cancel exists, must give or make available to the consumer a cancellation form as set out in part B of Schedule 3.
(2) In so far as the information is provided on a durable medium, it must be legible.
(3) The information referred to in paragraphs (l), (m) and (n) of Schedule 2 may be provided by means of the model instructions on cancellation set out in part A of Sch.3;
(4) Where a distance contract is concluded through a means of distance communication which allows limited space or time to display the information—
(a) the information listed in paragraphs (a), (b), (f), (g), (h), (l) and (s) of Schedule 2 must be provided on that means of communication in accordance with paragraphs (1) and (2), but (b) the other information required by paragraph (1) may be provided in another appropriate way.
(5) If the trader has not complied with paragraph (1) in respect of paragraph (g), (h) or (m) of Schedule 2, the consumer is not to bear the charges or costs referred to in those paragraphs.
(6) Any information that the trader gives the consumer as required by this regulation is to be treated as included as a term of the contract.
(7) A change to any of that information, made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.

Confirmation of distance contracts (16)
(1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium.
(2) The confirmation must include all the information referred to in Schedule 2 unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract.
(3) If the contract is for the supply of digital content not on a tangible medium and the consumer has given the consent and acknowledgment referred to in regulation 37(1)(a) and (b), the confirmation must include confirmation of the consent and acknowledgement.
(4) The confirmation must be provided within a reasonable time after the conclusion of the contract, but in any event—
(a) not later than the time of delivery of any goods supplied under the contract, and
(b) before performance begins of any service supplied under the contract.
(5) For the purposes of paragraph (4), the confirmation is treated as provided as soon as the trader has sent it or done what is necessary to make it available to the consumer.

Burden of proof in relation to off-premises and distance contracts (17)
(1) In case of dispute about the trader’s compliance with any provision of regulations 10 to 16, it is for the trader to show that the provision was complied with.

Cancellation period extended for breach of information requirement (31)
(1) This regulation applies if the trader does not provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2.
(2) If the trader provides the consumer with that information in the period of 12 months beginning with the first day of the 14 days mentioned in regulation 30(2) to (6), but otherwise in accordance with Part 2, the cancellation period ends at the end of 14 days after the consumer receives the information.
(3) Otherwise the cancellation period ends at the end of 12 months after the day on which it would have ended.

We have received no information given about the right to withdraw (there is no exemption from this even for distance contracts with limited space or time). The burden falls upon UKCPM, under paragraph 17 of the Act I have quoted above, to prove this to the contrary. Consequently, should POPLA decide in favour of UKCPM then I hereby notify UKCPM that I give Notice of Cancellation of this flawed 'contract' as is my right under the Regulations; a right extended to me for 12 months, due to the lack of information compliance.

MarcScot51

Thanks coupon-mad. I will add the final point to me appeal and remove the common law. It did cross my mine that the common law won't work. I may post my final draft here before I send. I know you have hundreds to skim through everyday. I will make it "short" and sweet.

There is a Popla code in their rejection letter. I have cropped out the Popla code when I croped my details fom the letter.

I am still in time to pay the reduced rate of £60 now as it is still within 14 days, I will of course refused to pay, in which case it will go up to £100 after 14 days. Does it stay at £100 whilst POPLA considering my appeal or will it go up any higher? I have seen some posters said the charge can go higher?

Coupon-mad

Stays at £100 and you will win anyway. We don't lose these = 100% record (even the single case lost was complained about to POPLA & won!).

Post your final draft here and don't make it short. You only need to win on one point, hence you need a few points as a catch-all.

MarcScot51

Dear POPLA Assessor,

Re ********* parking charge notice ********
POPLA ref **********

I wish to appeal this charge on the following grounds;

1) No Genuine Pre Estimate of Loss
2) Contract with Landowner
3) Inadequate Signage
4) The alleged contravention did not occur
5) CPM was out of time in responding to my appeal
6) Failure to comply with the Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013

1) No Genuine Pre Estimate of Loss

a) The Charge is not a contractual fee – it is a disguised breach

The Operator has attempted to avoid the necessity of having to justify a pre estimate of loss by stating that this is a contractually agreed fee on their signage. However on both the parking charge notice (which is described as exactly that, NOT an invoice for an agreed fee) and the rejection letter to my appeal they state that the charge is for being "in contravention of" and having "breached" the terms and conditions of parking. In addition, the wording on their sign also states that "unauthorised parking may result in your vehicle being issued with a parking charge notice".

The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be consideration, it would have to mean that permission to park without a permit was given providing a fee was paid. Clearly permission to "park in breach" cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.

I would like to highlight a similar appeal against CPM where POPLA assessor Marina Kapour found that

"The charge must either be for damages as submitted by the Appellant, or for consideration - the price paid for the parking as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay provided he or she pay the charge. Clearly, permission to park 'in breach' is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge and so it cannot be consideration".

I would also highlight POPLA appeal reference 9663053967 where an initially refused appeal against the same Operator who again, made the same attempt to describe the charge as a contractually agreed fee on their signage was allowed by the Lead Adjudicator. It was found that the charge was a penalty and as such was not a genuine pre estimate of loss. I contend that 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 but is a disguised breach and must be shown to be a genuine pre estimate of loss to be enforceable.

b) The Charge is Not a Genuine Pre Estimate of Loss

The charge of £100 is being sought for an alleged breach of the parking terms namely “parking without displaying a valid permit” 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, a permit had been paid for, there was no 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".

As the charge in this case is the same lump sum whether the vehicle is parked for 10 minutes or for 24 hours and the same amount is charged for any alleged contravention, it is clear that this is punitive and that no consideration has been given to calculating a genuine pre estimate of loss in this case.

In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred to either the Operator or to the Landowner.

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 reasonable 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 nor proved to be a genuine pre estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.



2) Contract with Landowner – Lack of Locus Standi

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). Such document should be in the Operator’s possession and falls under the category of disclosable documents in the event of a challenge.

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.

3) Hidden and Inadequate Signage – No contract

The Operator seeks to rely on a signage in their pursuit of parking charges. The signage the Operator referred to was placed very low and partly hiding behind bushes and leaves as shown in the photographic evidence supplied by the Operator. Furthermore, this signage is completely obscured should a car park in front of it. The BPA Code of Practice February 2014 clearly states that "Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand".

I assert that being unable to read the detail on the sign which was partly hidden behind a bush, breaches this code. If the Operator asserts the contrary, then I put the Operator to strict proof that the signage can be easily located and seen. Any photographic evidence submitted by the Operator must be taken at a similar time of night / light level as in my case, which was midnight, dark and raining.


4) The alleged contravention did not occur.

The wording on CPM sign states that "unauthorised parking may result in your vehicle being issued with a parking charge notice".

I was a resident at Southdowns Park and was fully authorised to park at the parking space. There is nothing “unauthorised” with a resident parking a vehicle at resident’s car park.

The Operator also acknowledged in their letter that I was authorised to parked at the parking space: “I appreciate you have later proved that you are a permit holder however for a permit management scheme to run effectively it is imperative that permits are displayed in the windscreen at all times, this is the only way CPM wardens can ascertain which vehicles are authorised to park. If it were the case that a PCN was rescinded each time a permit was produced after the contravention, a permit scheme would be irrelevant and CPM would have no way of combating fraudulent use”.

If the Operator was concerned about fraudulent use of parking spaces at Southdowns Park, then I have proven beyond reasonable doubts that I wasn’t. The Operator is required to address the fact that I did have a valid parking permit and was fully authorised to park at the said parking space rather than coming up with a hypothetical situation about “fraudulent use” which is irrelevant to the subject of this appeal.

5) CPM did not comply to the BPA code of practice in regards to responding to my appeal

Point 37.3 of the BPA code of practice states that

“ 37.3 If you receive a challenge or appeal about the issue of a parking charge notice, you must stop work on processing the ticket immediately. You must not increase the charge until you have replied to the challenge. You must acknowledge or reply to the challenge within 14 days of receiving it. If at first you only acknowledge the challenge or appeal, you must accept or reject the challenge or appeal in writing within 35 days of receiving it. We may require you to show that you are keeping to these targets.”

No acknowledgement of the appeal was received and the letter rejecting my challenge wasn’t received until the 10/10/14, 92 days after my appeal was received on the 11/07/14. This delay is unreasonable, unjustified and unacceptable.

As their response was received way outside the 35 days time frame set by the British Parking Association Code of Practice for them to accept or reject a challenge in writing, I submit that the charge is nullified.





Continues in next post....