Incorrect registration on windscreen PCN

Sophia29

Is there a thread or anywhere that the appeal letter can be posted so that the professionals can read through it and advise?

bazster

Here perhaps?

Sophia29

Wasn't sure if putting it on the open forum was the right thing to do as its been mentioned that the parking companies do look through the threads.

Sophia29

Hi everyone, it is finally crafted!
thanks for all help so far and any help/advice on the popla appeal I will post now is really appreciated.
It is quite long but hopefully a strong appeal (I had written the points on ntd already so included but can take out anyway)

Dear Sir/Madam,

As the Registered Keeper of vehicle with registration number XXXXX, I wish to appeal the parking charge notice (PCN) with the reference number XXXX issued on XXXX/2014 on the following grounds:

1. Charge not a genuine pre-estimate of loss
2. No authority to levy charges
3. Signage
4. Unlawful Penalty Charge
5. Business Rates
6. Failure to meet Provisions of POFA 2012
7. Failure to meet code of practice of BPA
8. Summary

1. Charge not a genuine pre-estimate of loss (GPEOL)

The company, ANPR Ltd., demand £100 for 'liquidated damages'. This is not an accurate reflection of any loss suffered and cannot be seen as a reasonable charge. The claim is not only disproportionate but punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any alleged loss to the land owner. Therefore this demand can only be viewed as an unfair term and therefore in breach of both Schedule 2 of the Consumer Contract Regulations 2013 and the Unfair Contract Terms Act 1997.

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.”

The keeper therefore declares that the charge is punitive and therefore an unenforceable penalty. I require ANPR LTD to provide a detailed breakdown of how the amount of the “charge” was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business (such as the erection of signage, the provision of back office services, 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.


1.1 The amount of the charge is disproportionate

The amount of the charge is disproportionate to the loss incurred (of which there is none by ANPR LTD) and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to be a penalty because being a free car park it is impossible to pay. There can have been no loss arising from this incident. Neither can ANPR LTD lawfully include their operational day-to-day running costs in any “loss” claimed. I contend there can be no loss shown whatsoever. The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. I would question that if a charge can be discounted by £50 by early payment that it is unreasonable to begin with.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

2. No authority to levy charges

A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner’s behalf and enforce for breach of contract. ANPR LTD must produce evidence to demonstrate that it is the landowner, or a contract that it has the authority of the landowner to issue charge notices at this location.

I believe there is no contract with the landowner/occupier that entitles ANPR LTD to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore has no authority to issue charge notices.

I demand ANPR LTD provide strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that ANPR LTD produce to POPLA the contemporaneous and unreduced contract between the landowner and ANPR LTD. Even if a basic contract is produced and mentions PCNs, 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 ANPR LTD and the owner/occupier, containing nothing that ANPR LTD can lawfully use in their own name as a mere agent, that could impact on a third party customer.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

3. Signage

I have personally visited the site in question and the signs and any core parking terms that ANPR Ltd. are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. Furthermore, the signs are not lit which renders reading them at night impossible. As at the time the Parking Charge was incurred (XXXX) it was dark and therefore not possible to see any signs which is not compliant with the BPA standards. I refer to a recent POPLA case in which the signs were not illuminated at night and as a consequence the appeal was allowed as the operator “failed to demonstrate that it took reasonable steps to bring the terms of parking to the attention of the appellant”.

ANPR Ltd. needs to show evidence and signage map/photos on this point - specifically showing the height and lighting of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. The contract which must be shown in full at the entrance which it is not. The signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.
Furthermore, having made a visit to the site in question, some signs displayed are broken and therefore not visible at all.

3.1

The British Parking Association's (BPA) Code of Practice 2014 indicates in Appendix B (page 27) that ‘the AOS roundel must always be shown on the sign’. It must at least be shown on signage for the private land (paragraph 2.7, page 5). Since neither of these is the case here, how does a so-called 'trespasser' know that ANPR Ltd. are legitimately allowed to enforce parking restrictions?


4. Unlawful Penalty Charge

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, it can only remain a fact that this “charge” is an attempt at extorting an unlawful charge in lieu of a parking permit. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

5. Business Rates

As this car park is now being used for the purpose of running a business by ANPR LTD, which is entirely separate from any other business the car park services, and generates revenue and profit for ANPR LTD, I do not believe that ANPR LTD has declared the running of their business venture at this location to the Local Valuation Office and Local Authority for the purpose of the payment of Business Rates.

I put ANPR LTD to strict proof that they have so registered the business they are operating at XXXX, Manchester car park with the Valuation Office and to provide proof that Business Rates are being paid to the Local Authority, or to provide proof or explanation of their exemption from such Business Rates.

6. Failure to meet provisions of POFA 2012

6.1 Detailed location of the vehicle – Notice to Driver

Schedule 4 of the Protection of Freedoms Act (POFA) 2012 states that a notice to driver must include a detailed location of the vehicle - the listed location is 'XXXX'. This is not a detailed or accurate description of the exact location.

6.2 Detailed location of the vehicle – Notice to Keeper

Schedule 4 of the Protection of Freedoms Act (POFA) 2012 states that a notice to keeper must include a detailed location of the vehicle - the listed location is 'XXXX'. This is not a detailed or accurate description of the exact location. Furthermore, the location as written on the notice to keeper does not exist at all and is not the same as the location written on notice to keeper.

6.3 Failure to meet time limits set out by POFA

Schedule 4 of the Protection of Freedoms Act (POFA) 2012, paragraphs 8(5) specify the time limits for serving a Notice to Keeper. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver.
ANPR LTD sent a notice to keeper dated 10/10/2014 for the alleged offence dated 13/8/2014. This is 58 days after the alleged offence and therefore fails to meet the law as set out.

6.4 Failure to meet requirements as set out in POFA 2012

Schedule 4 of the Protection of Freedoms Act (POFA) 2012, paragraphs 9(2a) states the notice to keeper must clearly include “the period of parking to which the notice relates”. The notice to keeper sent by ANPR LTD does no such thing and therefore fails to meet the requirements set out by law.

6.5 Failure to meet requirements as set out in POFA 2012

Schedule 4 of the Protection of Freedoms Act (POFA) 2012, also states that the PCN must include details of why the ticket was issued. The supposed offence is listed on the PCN as 'parked in an area that should be kept clear at all times'. I submit that there is no signage indicating that the supposed area should, in fact, be kept clear at all times (photo attached), thus the ticket was wrongly issued.

6.4 Failure to meet requirements as set out in POFA 2012

Schedule 4 of the Protection of Freedoms Act (POFA) 2012, paragraphs 8 (c) state that the notice to keeper must “state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required”.
ANPR LTD have failed to meet this requirement as the details on notice to driver are not repeated in notice to driver as they are inconsistent as follows:
Registration of vehicle

Time of alleged offence
Date of alleged offence
Location of alleged offence

7. Failure to meet BPA’s code of practice

As a member of the BPA, ANPR LTD agree to abide by the organisation’s code of practice. During the entire process of this episode, they have failed to do so as follows:

Stating that the registered keeper has lost the right to appeal.
Refusing to supply a correct and valid POPLA code within the rejection correspondence.
Forcing a registered keeper to enter into further correspondence to obtain a POPLA code.

Furthermore, having sent a letter of complaint as the registered keeper to the BPA on the above grounds, the BPA informed me “Unfortunately due to an error the POPLA Code was not included on your letter. The operator has been notified this and I have been assured this will not happen again. The operator is re-sending the letter to include a POPLA Code. This will allow you 28 days to appeal to POPLA.”

ANPR LTD clearly lied as how can the POPLA code not be included due to an error when the letter from ANPR LTD clearly states I have ‘lost my right to appeal’?
Further to this, ANPR LTD did not act as advised by the BPA and send a POPLA code but instead sent a ‘FINAL DEMAND’ invoice. This forced me to write to the BPA again to which I was told ‘unfortunately they (ANPR Ltd.) thought the Code had already been sent out.”
To which I must ask, if ANPR Ltd. “thought the Code had already been sent out” why are they continuing to seek payment for the alleged offence? This is further breach of code of practice as during an appeal, no payment must be sought.

8. Summary

On the basis of all the points I have raised, this “charge” fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law as set out in Schedule 4 of POFA 2012.

I have not and do not intend to pay the alleged parking charge for the above reasons and I would request that ANPR Ltd. provide documentation as follows: A copy of their contract with the landowner which authorises them to act on their behalf, including a statement of the sum of liquidated damages to be paid by ANPR Ltd. if they are in breach of their contract. Photographic evidence of the actual signs stating that the alleged area is to be kept clear at all times, including timestamps. A copy of the full terms and conditions which ANPR Ltd. alleges were breached. A copy of all the images ANPR Ltd. has of the vehicle and a copy of their protocol for handling these.

Yours faithfully,


Thank you!!

Coupon-mad

Sophia29 wrote: »

The POPLA code has at last been received after two complaints to BPA so the appeal is being drafted. One question though, on the NTD (window ticket), the incorrect registration and incorrect date of alleged offence were written down.
Should the fundamental errors in NTD be included in appeal as well as the errors in only receiving NTK after the 56 days allowed plus GPEOL and others or should it just stick to appealing on NTK as original window ticket was ignored?

I say the keeper should be saying the driver has shown them the Notice to Driver and that the date and the car registration were both wrong, hence why the driver ignored it and never mentioned it to you as keeper. Now you have seen the NTD you realise this makes BOTH documents non-compliant with the POFA. The NTD was flawed as it failed to properly specify the vehicle and the date of issue, and the NTK was flawed (among plenty of other omissions) because it failed to repeat the information in the NTD...because it couldn't, because that information was wrong.

Sophia29

Does anybody have any advice on the rest of the letter? Thanks.

Umkomaas

Sophia29 wrote: »

Does anybody have any advice on the rest of the letter? Thanks.

1. Is what you say in the following paragraph correct?

The British Parking Association's (BPA) Code of Practice 2014 indicates in Appendix B (page 27) that ‘the AOS roundel must always be shown on the sign’. It must at least be shown on signage for the private land (paragraph 2.7, page 5). Since neither of these is the case here, how does a so-called 'trespasser' know that ANPR Ltd. are legitimately allowed to enforce parking restrictions

I know owd Trev's signs are rather garish and a bit cartoonish, but on the ones I've seen posted up here, I've never spotted a missing BPA roundel.

2. Appeal para 5 - Business Rates. Dead-in-the-water appeal point. Has never been adjudicated on and forum advice is this is now a red herring and should be discontinued. It rather 'ages' your appeal as its not been advice to include this for many months. Leave it out.

3. The points you make about the non-compliance with PoFA in the context of the NtK need to be crystallised by making the statement that this non-compliance renders the keeper not liable for these charges, and ANPR Ltd are pursuing the wrong person. You have to make that point to have any chance of POPLA making an adjudication on the POFA appeal paragraph.

4. Appeal point 7 - BPA Code of Practice compliance. Not in itself a POPLA adjudication point (they say that's for the BPA to deal with, not POPLA) - but the point you must make is that POPLA have said that where they become aware of CoP 'misdemeanours' they will inform the BPA of them. Ask them to do that. I'll hunt around for the link with that information, so you can quote it back to them. I'll return later if I can find it (or if another regular has the link, maybe they'll drop it by).

HTH

EDIT: Here's the quote:

Operators may be reported to the British Parking Association by the Lead Adjudicator for an apparent breach by an operator of the BPA Code of Practice. I also deal with this elsewhere but, as of 31 March 2013, which is the first six months of POPLA, I have made one such reference.

From the Lead Adjudicator's Annual Report 2013, linked here:

http://www.britishparking.co.uk/write/Documents/AOS/POPLA_report_embargoed_until_2pm_4.6.13.pdf

Sophia29

Thanks for that - really helpful!

Yes, no roundel on the signs, tried to post here but not sure how sorry!

Will edit around keeper liability as suggested. And take out business rates. Is there anything you think I might be missing?

Am I right to mention the registered keeper is under no obligation to disclose driver identity?

Umkomaas

Yes, no roundel on the signs, tried to post here but not sure how sorry!

Host the photo on a free hosting site like Photobucket and post the link in this thread, but as a NEWBIE you will need to change the http in the link to hxxp and one of the regulars will do the conversion. It would be interesting to see (another) owd Trev blunder.

Is there anything you think I might be missing?

I'd have said so in my previous post! Stop trying to gild the lily, it's only owd Trev!

Am I right to mention the registered keeper is under no obligation to disclose driver identity?

POPLA know that! Just state that as no keeper liability has been established because of their non-compliant NtK, they are pursuing the wrong person. Leave it at that!

Sophia29

ha sorry I got a feeling I was doing that! I think Im just nervous having never done this - really appreciate the help, thanks again.