Popla appeal

Chalky99

Hi,

I'm a newbie fighting a car parking ticket received on private land. I have received the NTK & appealed which was rejected & so I now have a Popla appeal to do. I recall it was suggested I let MES or this forum see it first, is that still the recommendation? If so where do I post it, here?

Northlakes

Submit it here and an expert will come along. Presumably you have read and understood the NEWBIES thread and the different actions according to each PPC.

Chalky99

Many thanks for your help, appeal follows (sorry it so wordy)


POPLA REF XXXXXXXXXXXXXXXX

CAR REG XXXXXXXXXXXXXXXX

As the registered keeper of the car mentioned above I would like to appeal and have cancelled the parking charge notice issued by Ethical Parking Management for a number of reasons outlined below:

[FONT=Times New Roman, serif]1. [/FONT][FONT=Times New Roman, serif]The Notice to Keeper [/FONT][FONT=Times New Roman, serif]was not received in the 56 day time limit.[/FONT]
2. Ethical Parking Management has no contractual authority
2. The charge is punitive and not a genuine pre-estimate of loss
3. Keeper Liability Requirements and the Protection of Freedom Act
4. No Contract was entered into between the Ethical Parking Management and the Driver or Registered keeper
6. Unfair terms of contract
7. Without a contract
8. Non BPA compliant signage

[FONT=Times New Roman, serif]1. [/FONT][FONT=Times New Roman, serif]The Notice to Keeper [/FONT][FONT=Times New Roman, serif]was not received in the 56 day time limit.[/FONT]


[FONT=Times New Roman, serif]Schedule 4 of the POFA Act 2012. [/FONT][FONT=Times New Roman, serif]requires the notice to keeper to be sent within 56 days. The ticket was issued on 24/7/14 & the NTK was written & posted on 19/9/14. This is 57 days & it was not received till[/FONT][FONT=Times New Roman, serif] 22/9/14 (60 days [/FONT][FONT=Times New Roman, serif]from [/FONT][FONT=Times New Roman, serif]24/7/14[/FONT][FONT=Times New Roman, serif])[/FONT][FONT=Times New Roman, serif]. [/FONT]


2. Ethical Parking Management has no contractual authority

In the notices they have sent me Ethical Parking Management have not shown any evidence that they have any proprietary interest in the car park/land in question. Also they have not provided me with any evidence that they are lawfully entitled to demand money from either driver or keeper. It would seem that they do not own or have any interest or assignment of title in the land. I can only assume instead they are agents for the owner/legal occupier instead. I submit therefore that they do not have the necessary legal right to make the charge for a vehicle using the car park. I require Ethical Parking Management to provide a full, up-to date and signed/dated contract with the landowner (a statement saying someone has seen the contract is not enough). The contract needs to state that Ethical Parking Management are entitled to pursue matters such as these through the issue of Parking Charge Notices and in the courts in their own name. I clarify that this should be an actual copy and not just a document that claims a contract/agreement exists.

3. The charge is punitive and not a genuine pre-estimate of loss

Judging by the wording of the parking charge notice this is clearly an attempt to enforce this charge under paragraph B 19.5 of the BPA Code of Practice in which it states that this must be a genuine pre-estimate of the loss that may have incurred. If the time that my car was in the car park for was1 hour, the parking charge tariff is £1. They are asking for a charge of £100 for this penalty. This alone is far more than the cost to the landowner. The charge is clearly punitive and disproportionate to any alleged breach of contract.

Furthermore as the operator is clearly seeking to impose a penalty, it is their sole responsibility to provide a full breakdown as proof of the pre-estimated loss of £100. As of this point they have made no effort to provide me with a breakdown of the costs they allegedly incurred. To justify the charge of £100, I require Ethical Parking Management to back up their decision by providing POPLA with a full and detailed financial breakdown of the pre-estimated costs they have suffered as a result of the charge in question. I would like to add that normal costs of running their business (their day to day costs like provision of parking, enforcement, signage, salaries, rent etc) must not be included in the breakdown as Ethical Parking Management would need to pay these irrespective of this alleged charge. Parking enforcement costs cannot possibly represent any loss resulting from an alleged breach of contract, as these costs would need to be paid whether the breach had happened or not.

In summary not only is the £100 charge completely disproportionate meaning that it is punitive and is breaking the Unfair Contract Terms Act 1997, but there can be no loss shown at all as no pre-estimate charge has been put together making the charge unenforceable against me or the driver.

4. Keeper Liability Requirements and the Protection of Freedom Act

As keeper of the vehicle, I decline, as is my right to provide the name of the driver of the vehicle at the time in question. As the parking company have neither named the driver nor provided any evidence as to who the driver was I submit that I am not liable to any charge. In regards to the notices I have received, Ethical Parking Management has made it clear that it is operating under Schedule 4 of the Protection of Freedom Act but has not fully met all the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore in relation to this point only pursue the driver.

I would like to point out that Schedule 4 paragraphs 8 and 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. The Act clearly states that the parking charge notice to keeper should invite the registered keeper to pay the outstanding parking charge (or if he/she was not the driver, to provide the name and address of the driver and pass a copy of the notice on to that driver). In their parking charge notice letter at no point did they actually invite me as the registered keeper to pay the parking charge. Instead they imply that my only choice is to give up the name of the driver of the vehicle (when in actual fact I am under no legal obligation to do so). The wording of the PCN actually makes it sound like I have little choice but to give up the driver and does not actually state the choice to pay it myself. I would also like to point out that the Act stipulates that the parking company must provide me with the period the car was parked. I would strongly argue that the format of evidence provided (photographs from a camera) is not actually valid or sufficient on its own as a form of evidence.

5. No Contract was entered into between the Ethical Parking Management and the Driver or Registered keeper

Although I was not the driver I would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. Ethical Parking Management clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed.
It is surely the responsibility of Ethical Parking Management to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require Ethical Parking Management to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park. I would specifically like them to look into how clear the signs are that inform drivers.

Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.

I request that Ethical Parking Management provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.

6. Unfair terms of contract

Although there is no contract between Ethical Parking Management and the driver (or myself), if there were then I would ask POPLA to consider this charge to be unfair and non-binding based on the Unfair Terms in Consumer Contracts Regulations 1999. There is a clear list of terms that apply. I have highlighted the following specifically as I believe they apply directly to this case:

2. (1) (e) Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.

5. (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

5. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

The Unfair Terms in Consumer Contracts Regulations 1999 was brought in to protect consumers from unfair contracts such as the one Ethical Parking Management Ltd are suggesting. A company such as Ethical Parking Management needs to actually prove that the driver saw, read and accepted the terms, which is impossible because this did not actually happen.

7. Without a contract

Without a contract it would seem the most appropriate offence would be a civil trespass. If this were the case, the appropriate award Ethical Parking Management could seek would be damages. As there was no damage to car park there was no loss to them at all and therefore should be no charge.

8. Non BPA compliant signage

The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver

Following receipt of the charge, I have personally visited the site in question. I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park.

The Operator 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. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. I believe 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.

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, rather than simply the nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

I respectfully request that this parking charge notice appeal be allowed and await your decision.

Northlakes

It's good from the appeal that you have two main appeal points, a defective NTK and the solid GPEOL defence. It looks good to me but Im sure a expert will check it more thoroughly especially CM where this appears to be her home territory.

Coupon-mad

Yep that will win - you could amalgamate points and 4 if you want because point 1 also leads to the 'no keeper liability' argument as a fact, which is a slam dunk winning point for a keeper!

Chalky99

Is it best posted as I need to enclose a copy of the NTK letter to show the dates? Not sure if you can add attachments to a on line Popla appeal.

Thanks

DJBenz

Chalky99 wrote: »

Is it best posted as I need to enclose a copy of the NTK letter to show the dates? Not sure if you can add attachments to a on line Popla appeal.

Thanks

You can use the 'upload evidence' link on the POPLA website to send documents.