A Few Parking Charge Questions

TheDirector

Hi there,

We received a parking charge about a month ago and looked on this site for advice. We waited for the letter which arrived today i.e. Notice to Keeper. From what I understand I just need to work my way through the sticky thread stage by stage?

I need to read it all again in detail, but I am aware it mentions writing to the actual organization / landlord who owns the property. How would I find this out? The parking charge company doesn't state this in their letter, it just says 'your vehicle was recorded on our clients private property...'

Also, when the template response letter is used, is it worth mentioning the fact that the car was not parked in one of the marked bays apparently, but parked at the end of a row of bays in a space where there are no markings.

Presumably, all of the letter template should be used not just bits?

Thanks a lot.

ezerscrooge

Which PPC is it? Does the PPC offer POPLA or IPC?

The landowner can usually be found by doing a google search, but the NtK should be identifying the landowner as the 'creditor' not just some sloppy wording stating 'our clients private property' That's a slam dunk for a non-compliant NtK as they must identify the creditor (for POPLA anyway).

Fruitcake

Don't mention where the car was actually parked. Mitigation or what happened on the day doesn't work so just stick to the appeal points in the template from the NEWBIES thread.

Yes, use all the points in the template. Make the PPC try to prove each point to the contrary.

TheDirector

The letter received was from UK PC - it doesn't mention creditor, the only inference to a landlord was in the first sentence as mentioned when it stated 'our client's private property'.

The letter did not reference POPLA, should it have done? It has a BPA logo on it though.

I'll tell the person who received the letter to use all of the template.

Thanks.

ezerscrooge

UKPC are easy to beat - they are members of the BPA and use POPLA.

Use all the template, and e-mail the appeal (but if posting then obtain a free proof of posting - they have a habit of losing letters)

If they refuse to cancel the charge then it will be off to POPLA where you will easily win with help here. Do advise the person who recieved the letter to post their redacted appeal on here though before sending, just so the regulars can make sure it is a bang up to date winner.

TheDirector

Notice to Keeper has been checked against legislation and no issues identified, so it is just a case of sending the template letter off. when a keeper appeals with the template letter do they need to take photos of the signs and attach them to the letter or is this only if there is some particular with the signs. The newbie thread doesnt really mention photo evidence.

Coupon-mad

You want us to believe that a UKPC NTK letter is compliant with the POFA?


- identifies the creditor, using that word?
- specifies the 'period of parking'
- describes the 'unpaid parking charges' that were 'outstanding' before the PCN time?


Etc...?

TheDirector

Does creditor refer to PCC or landlord?

Also, in respect of specifying the period of parking, if the NtoK states the date of the parking (and has a time next to it) is that sufficient?

I am struggling to understand what this sentence means - "describes the 'unpaid parking charges' that were 'outstanding' before the PCN time?" And this is probably a stupid question, but is the latter definitely in the legislation, couldn't spot it in paragraph 8.

In terms of the appeals letter / email, below is a copy of what will be sent - it is essentially the template from the newbie thread. A few questions about it if that's OK:

- Is there a reason why one of the last paragraphs is in italics i.e. should it only be used in specific circumstances?
- Should a paragraph be inserted somewhere detailing name and address of keeper and make of vehicle, as requested in the NtoK?
- I notice on some other threads that not everyone included some of the paragraphs (the ones I have coloured red below). Should they be taken out in certain situations?
- One of the paragraphs refers to AOS members, should that always be kept in - not sure what it means

PCC
PCC Address

Dear Sirs,

Re: PCN No. xxxxxxxxxxx

I challenge this 'PCN' as keeper of the car, on the following grounds:

a). The sum does not represent a genuine pre-estimate of loss, nor is it a core price term. It is a disguised penalty and not commercially justified.
b). As keeper I believe that the signs were not seen, the wording is ambiguous and the predominant purpose of your business model is intended to be a deterrent.
c). There is no evidence that you have any proprietary interest in the land.
d). Your 'Notice' fails to comply with the POFA 2012 and also breaches the Consumer Contracts (Information, Cancellation and Additional Payments) Regs 2013.
e). There was no consideration nor acceptance flowing from both parties and any contract with myself, or the driver, is denied.

The purpose of this communication is threefold:

1. Formal challenge
There will be no admissions as to who was driving and no assumptions can be drawn in the absence of evidence. As such, you must either rely on the POFA 2012 or prove beyond any doubt who was driving - or cancel the charge. I strongly urge you to uphold this challenge now or alternatively, send a rejection letter - subject to accepting my claim for costs as clearly stated below, since you have no case. I will then escalate this appeal to the independent appeal service offered by your Trade Body.

2. ''Drop hands'' offer
The extravagant 'parking charge' is baseless but I realise that you may have incurred nominal costs. Equally, I have incurred costs to date, for researching the law, reading your Notice and responding, despite a lack of contract. I calculate both my costs and yours to be under £15 at this early stage, therefore, this is a formal “drop hands” offer. I remind you of the duty to mitigate any loss, so withdraw the spurious charge within 35 days without further expense and I will not pursue you for my costs. If you persist then I will charge in full for my time at £18 per hour plus my expenses.

3. Notice of cancellation of contract
I hereby give notice of withdrawal from this alleged contract which was never properly offered or explained by you. The charge is not acknowledged, is not due and no 'service contract' from you was ever expressly requested. Neither the driver nor myself gave 'prior express consent' or any consent at all for any contract to exist and it is not for me to pay an extravagant sum just because you chose to foist unexpected and non-negotiated onerous terms upon me. This 'contract' is hereby cancelled and any obligations now end. If you offer - and if I decide to use - IAS or POPLA, then the contract ends immediately on the date of their decision (whatever the outcome) so my notice of cancellation still applies.

You have failed to provide the required information for consumer contracts in a 'durable medium' in advance and you have failed to obtain 'express agreement' from me as driver before concluding your alleged contract. This is a form of specific consent which cannot flow from a sign and it seems AOS members have not considered the Consumer Contracts (Information and Cancellation) Regulations which apply now to every EU consumer contract, save for a few exemptions, which parking contracts are not. It is the will of Parliament following the EU Consumer Rights Directive, that consumer contracts from 13th June 2014 are clearly offered and express consent is obtained - not implied consent - in order to reach a level of consistency whereby foisting of contracts like this on consumers by stealth, is a thing of the past.

By replying to the challenge, you will also be acknowledging receipt, understanding and acceptance of points 2 and 3 above. If you do not now cancel, then I will be put to unnecessary expense and hours of time in appealing or defending this matter. As such, you will be liable for my costs which are likely to exceed £100 if you ignore the fact I have cancelled the contract, should you now proceed to independent appeal and/or small claims court.

Only reply with a rejection letter if you understand and accept your future liability, since I have already openly indicated the main points of appeal and have pointed out that your contract breaches current UK Regulations which were introduced in 2014 to protect consumers in a consistent manner. I have also cancelled any contract that you may think exists. If you choose to refuse my drop hands offer, you accept liability for my expenses and time wasted on repeating my points at further appeal stage and in court if necessary.

Where sent by post I have obtained proof of posting. Where submitted online/by email I have kept a copy and this communication is clearly received by you unless proved otherwise. I look forward to your considered reply within 35 days and urge you to accept the drop hands offer and accept that I have cancelled any 'contract' because this resolves the dispute without cost.

Yours faithfully,

(xxxxxxxxxxxx)

Coupon-mad

TheDirector wrote: »

Does creditor refer to PCC or landlord?

Exactly - does it, you don't know for sure - which is why the NTK must identify the creditor.

Also, in respect of specifying the period of parking, if the NtoK states the date of the parking (and has a time next to it) is that sufficient?

Arguably not as it's not a period of time, it's merely the 'time when the notice is given' and the date.

I am struggling to understand what this sentence means - "describes the 'unpaid parking charges' that were 'outstanding' before the PCN time?" And this is probably a stupid question, but is the latter definitely in the legislation, couldn't spot it in paragraph 8.

It's in paragraph 7(2)(c) in fact, as it's a requirement of the NTD (which must then be repeated in the NTK):


7(1)A notice which is to be relied on as a notice to driver...is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(b)inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose (including the means by which it was brought to the attention of drivers) and the other facts that made those charges payable;
(c)inform the driver that the parking charges relating to the specified period of parking have not been paid in full and specify the total amount of the unpaid parking charges relating to that period, as at a time which is—
(i)specified in the notice; and
(ii)no later than the time specified under paragraph (f);
(d)inform the driver of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(e)identify the creditor and specify how and to whom payment may be made;
(f)specify the time when the notice is given and the date.

In terms of the appeals letter / email, below is a copy of what will be sent - it is essentially the template from the newbie thread. A few questions about it if that's OK:

- Is there a reason why one of the last paragraphs is in italics i.e. should it only be used in specific circumstances?

Nope I might switch it back when I next edit the Newbies thread! No need for italics there.

- Should a paragraph be inserted somewhere detailing name and address of keeper and make of vehicle, as requested in the NtoK?

Of course the address is needed, yes, it's a letter so the postal addy goes top right, or under your signature if doing this by email. No need for 'make of vehicle', no idea why they put that.

- I notice on some other threads that not everyone included some of the paragraphs (the ones I have coloured red below). Should they be taken out in certain situations?

Mentioning the Consumer Contracts (Information & Cancellation) Regs is a new idea, so you won't have seen that in older versions people have used over 2 months ago. It's up to you, it's not imperative to include it but I rather like the fact you have 'cancelled the contract' and by replying they have acknowledged same!

- One of the paragraphs refers to AOS members, should that always be kept in - not sure what it means

Yes, AOS = 'approved operator scheme' = BPA member who can get DVLA data, basically.

TheDirector

Thank you for all the information, that's really really helpful.

Just a few points though about the POFO:

- I think perhaps creditor might mean the organisation / party that is allowed to attempt to recover the parking charge, in which case the fact that the N2K has the name of the PCC on the letter would mean the PCC has met its obligations potentially.

- Point taken about period of time

- In respect of the POFO legislation i.e.7(2)(b), (7)(2)(c) and (7)(2)(e), I might be reading it wrong but the fact the UKPC letter states the charge, that nothing has been paid to date, what the amount still to be paid is etc may suffice...

Thanks.

Coupon-mad

I think perhaps creditor might mean the organisation / party that is allowed to attempt to recover the parking charge, in which case the fact that the N2K has the name of the PCC on the letter would mean the PCC has met its obligations potentially.

That's not what POPLA Assessors sometimes say:

https://forums.moneysavingexpert.com/discussion/comment/66583645#Comment_66583645

'The operator must produce evidence that this has occurred regardless of whether the issue is raised by the appellant, as the liability is not based in the law of contract but is created by the statute. The notice to keeper issued by the operator appears not to comply with sub-paragraph 2(h) as it does not identify the creditor. The identification of the operator as the organisation to which cheques should be made payable and to whom complaints may be made does not constitute an identification of the creditor, as an organisation that is not the creditor could perform all the specified roles. As the notice to keeper is not valid, I cannot find that the charge notice is enforceable against the appellant.'

In respect of the POFO legislation i.e.7(2)(b), (7)(2)(c) and (7)(2)(e), I might be reading it wrong but the fact the UKPC letter states the charge, that nothing has been paid to date, what the amount still to be paid is etc may suffice...

No how can it be, because the NTD has to describe the UNPAID parking charges which were outstanding before the NTD was issued. That is not the 'parking charge' of the same name, which only arises after the driver is served with the PCN. That extortionate 'parking charge' which only arises after a breach, could not by any stretch of the imagination be described as 'unpaid' before it has been invoiced. I am not talking about the 'letter' I am going back to the NTD as per paragraph 7 and it did not 'describe the unpaid parking charges', only the 'new parking charge' if you like.

THEY ALL DO IT - IT'S THE ELEPHANT IN THE ROOM THAT THEIR PARKING CHARGE IS NOT THE SAME THING. They will all keep on doing this until such time as it's tested in a higher court (unlikely for this point to be tested - so nothing is done, what's in it for them to describe the tariff? Nothing much except the odd lost POPLA appeal if POPLA decide to accept the argument).