Parking Charge - Armtrac

NFA

This bit isn't true. I contacted Armtrac directly and they issued a new code.

I had to complain to the BPA, who ordered Armtrac to issue a fresh POPLA code to me and others similarly disadvantaged by their sharp practice.

NFA

[FONT=&quot]I have amended the bits you have suggested, Mr Coupon Mad. Do you think, in the light of my wife's first letter and the fact that I paid for a ticket, I should remove the signage part of my appeal? any other points you can think of to avoid paying this?[/FONT]


[FONT=&quot]Even if this doesn't work, you guys are legends FYI! Really amazing community here.
[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]Dear POPLA,[/FONT]

[FONT=&quot]I would like to confirm that I am not the registered keeper of the vehicle XXXXXX and in addition I am not liable for PCN 0000XXXXX issues by [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac). I am appealing the PCN on behalf of all parties involved in disputing the PCN. I wish to appeal on the grounds numbered 1 - 4 as outlined below:[/FONT]

[FONT=&quot]1. The charge is not a genuine pre-estimate of loss.[/FONT]

[FONT=&quot]The amount of the charge is disproportionate to the loss incurred by [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to be a penalty because [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) have alleged a breach of terms and conditions and yet have not quantified their alleged loss (which cannot include business running costs nor the POPLA fee)[/FONT]

[FONT=&quot]The £100 is a sum 'plucked out of the air' by the operator and it bears no relation to any loss. My proposition is that £100 was chosen because it happens to be the maximum figure the BPA feel is a 'tolerable' amount to impose on motorists, when compared to PCNs issued by Councils on street. There is no valid comparison with a private firm alleging 'breach' in order to maximise their own profits and a real PCN from a Council - but the BPA admitted to the Government that Council PCN amounts were the basis of that figure.

I require KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) [/FONT][FONT=&quot]to explain and provide evidence and a breakdown of calculations behind this pre-estimate charge.

To support my claim, in the 2014 POPLA Annual Report the Lead Adjudicator, Mr Greenslade, stated, “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

If [/FONT]KBT Cornwall Ltd[FONT=&quot] presents what they describe as a GPEOL statement I require them to show documentary evidence regarding exactly when this 'pre-estimate of loss' was discussed with the landowner in advance, and/or at any substantive meeting. How/when were these calculations made and on what basis? I put KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac)[/FONT][FONT=&quot] to strict proof that they ever had such a meeting.

If there was no meeting to discuss the £100 charge in advance then there was never a pre-estimate of loss discussion at all, as was found in April 2013 in 1IR65128 Brookfield Aviation Int. Ltd. v Van Boekel, where by HHJ Hand QC concluded in his summary at 94:[/FONT]
[FONT=&quot]
''I do not believe the evidence...that there was ever an attempt at a genuine pre-estimate of loss. I have found that there was no meeting in 2007...it seems to me that a conclusion that there was never any attempt at a genuine pre-estimate of loss is of some significance...Finally, the fact that the figure was arrived at by reference to what pilots might be prepared to tolerate...shows to my mind that in so far as the Claimant made any calculation as to amount, that calculation related to the balance between deterring breach and enforcing the notice period on the one hand and deterring recruitment on the other. In short, the sum stipulated for was not a genuine pre-estimate of loss but an “in terrorem” sum to deter breach and as such is a penalty.''

A direct comparison can be drawn with Brookfield v Van Boekel that, so far as KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) [/FONT][FONT=&quot]made any calculation as to amount, that calculation related to the balance between deterring breach and enforcement on the one hand and deterring customers, on the other. £100 was simply the maximum set by the BPA, a sum which motorists might 'tolerate'. [/FONT]
[FONT=&quot]
I contend that the figure of £100 is a penalty clause in terrorem to deter breach, neither can it be commercially justified.

POPLA Assessor Chris Adamson stated in June 2014 that:
''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”. This supports the principle 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 reasonably 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.''[/FONT]

Additionally – As you can see the from the attached photos, the day that the PCN was issued, the car park was less than half full, meaning that the land owner/[FONT=&quot]KBT Cornwall Ltd (Armtrac) would have suffered no loss due to the vehicle in question. [/FONT]

[FONT=&quot]
2. No standing/authority to form contracts with motorists

[/FONT]
[FONT=&quot]I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) lack of title in this land means they have no standing to allege trespass or toss, if that is the basis of their charge. I put [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) to strict proof to provide an unredacted, contemporaneous copy of the contract which - to demonstrate standing and authority - must specifically state that [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) can make contracts with drivers themselves and that they have full authority to pursue charges in court in their own name. A witness statement to the effect that a contract is in place will not be sufficient because it will not show which restrictions are to be enforced, what the times/dates/details of enforcement are. How will I know that the landholder contract allows [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) to charge £100 for this particular contravention if the contract is not produced? Showing a piece of paper signed by someone who has never seen the actual contract, saying merely that [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) can put up signs and 'issue parking charges' would not prove that they can form contracts with drivers nor show that they can charge this amount for this contravention.[/FONT]

[FONT=&quot]I contend that [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) are only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS -v- HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

I believe there is no contract with the Landowner/occupier that entitles them to LEVY these charges and therefore has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) to prove otherwise so I require that [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) produces a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it.

Even if a basic contract is produced and mentions PCN’s, 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 [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) and the owner/occupier, containing nothing that [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) can lawfully use in their own name as a mere agent, that could impact on a third party customer.

3. [/FONT][FONT=&quot]Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).[/FONT]
[FONT=&quot]
I was not the driver, I was merely the passenger but Armtrac never asked or established who was driving. However, I have the right to appeal to POPLA because I was the 'keeper' that day (under the POFA definition) as I had borrowed the vehicle from a relative and was in charge of it that day, albeit not driving. So I have only ever appealed as keeper. Yet Armtrac have failed to establish 'keeper liability' as they overlooked the small matter of issuing a Notice to Keeper, which is a prescribed document under the statute. Without that - having neglected to establish who was driving - they have failed to meet the 'second condition' for keeper liability in Schedule 4 and I cannot be held liable now, since they have wasted so much time delaying my POPLA code that they have timed themselves out, beyond day 57.


[/FONT]
[FONT=&quot]4. The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between KBT Cornwall Ltd and the driver[/FONT]
[FONT=&quot]
A lack of clear signs and legible wording creates no contract. The sign is not prominent and not reflective. I put KBT Cornwall Ltd to strict proof otherwise; as well as a site map they must show photos. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms.

The BPA code of practice (October 2012) contains the following:

18.2 Entrance signs, located at the entrance to the car park must tell drivers that the car park is managed and that there are terms and conditions which they must be aware of. Entrance signs must meet minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and follow Department for Transport guidance.

KBT Cornwall Ltd signs in this car park are unclear, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) KBT Cornwall Ltd has no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.[/FONT]

[FONT=&quot]Evidence that the signage in this car park is unclear can be found in the documentation sent from [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] on the 01/11/14 . As you can see, [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] has sent a photograph of a WARNING notice which appears to be pinned to an office wall. I wish to point out that photographing a poster on a wall is not evidence of the signage. [/FONT]

[FONT=&quot]Furthermore, the photographic evidence that they have sent of the signage in the car park adequately demonstrates that the signage is written in a font so small that even a photograph taken from three meters away can not accurately resolve the font used, meaning that a driver entering the car park would neither be able to read and understand the text, nor have the relevant information on which to base a contractual decision.[/FONT]


[FONT=&quot]Additional information;[/FONT]
[FONT=&quot]
The reason for issuing the PCN is unclear. The reason stated on the PCN is “The vehicle was causing an obstruction”, however, as you can see from the attached photos, the vehicle in question is not causing an obstruction to traffic or pedestrians. In [/FONT][FONT=&quot]KBT Cornwall Ltd’s correspondence on the [/FONT][FONT=&quot]01/11/14[/FONT][FONT=&quot], they have stated that the reason from the PCN was for “[/FONT][FONT=&quot]Not Parked Wholly Within Bay[/FONT]”[FONT=&quot]. I would like to draw your attention to their own signage that states “any vehicles parked outside of marked bays will be issued with a Parking Charge Notice”. Emphasis on “Bays” being plural, the vehicle is most certainly parked within the “bays”. They have also added that that the driver should have bought a second ticket whilst parked across two bays. Upon further inspection of their terms and conditions, I can find no evidence that KBT Cornwall Ltd have stipulated that a large vehicle covering two bays must purchase two tickets. Given that the car park destination is a seaside resort and frequently visited by camper-vans, KBT Cornwall Ltd should have had the foresight to have stipulated a protocol for such an event rather than relying upon the driver to assume protocol. [/FONT]

[FONT=&quot]As you can see in the photos attached at the pay point, the maximum fee is £4.90. Considering that all of KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) signage consistently refers to the “vehicle”, it would be fair to deduce that the maximum fee stipulated on the pay machine of £4.90 is “per vehicle”[/FONT][FONT=&quot]. That is the amount that was purchased for the said vehicle on the day that the PCN was issued. Furthermore, had there been a second ticket attached to the said vehicle, would that have absolved the supposed offence of being parked outside of the marked bays? This appears to be a very deliberate blurring of the rules in order to impose an unreasonable charge.[/FONT]

Armtrac failed to respond to my initial appeal within the 35 days promised in their letter dated [FONT=&quot]01/11/14[/FONT]. They in fact took 57 days to respond and consequently, by the time their response was received, the POPLA verification code had only 1 day before expiration, meaning that there was not enough reasonable time to assemble an appeal. Having read of numerous similar cases, I believe that Armtrac are deliberately using this delay tactic in order to avoid having disputes brought against them and in doing so are making a mockery of the entire appeals process. [FONT=&quot]This has been raised with the POPLA Scrutiny Committee by an interested person, this week.[/FONT]

[FONT=&quot]l submit this purported charge is not legal [/FONT][FONT=&quot]and therefore respectfully request that my appeal is upheld and the charge is dismissed [/FONT][FONT=&quot]and that [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) should cease pursuing this forthwith. [/FONT]

NFA

Coupon-mad wrote: »

Oh good, she didn't say she was driving then (''my vehicle'' is fine!). And I bet they never sent a Notice to Keeper to the keeper (your brothers work place)?! They won't have done, because they just got excited about having an appeal letter in straight away, hoped you were victims who would pay up, and didn't notice that the appellant wasn't the driver!

So assuming she was the passenger then(?) point 3 could be:

She was the passenger. I have posted her letter on here for you to take a look over. Some mistakes but she hasn't said that she was the driver, because she wasn't.

They haven't contacted my brothers work place. He said if they do, he'd send a letter back saying that the camper van was being used that week and he doesn't know who the driver was at the time. Which would be true.

hoohoo

Add something on the lines of

The Unfair Terms in Consumer Contract Regulations 1999 applies. Section 7 states that where there is any ambiguity, it should be resolved to the advantage of the consumer.

Written contracts
7.—(1) A seller or supplier shall ensure that any written term of a contract is expressed in
plain, intelligible language.
(2) If there is doubt about the meaning of a written term, the interpretation which is most
favourable to the consumer shall prevail but this rule shall not apply in proceedings brought
under regulation 12.

Coupon-mad

hoohoo wrote: »

Add something on the lines of

The Unfair Terms in Consumer Contract Regulations 1999 applies. Section 7 states that where there is any ambiguity, it should be resolved to the advantage of the consumer.

Written contracts
7.—(1) A seller or supplier shall ensure that any written term of a contract is expressed in
plain, intelligible language.
(2) If there is doubt about the meaning of a written term, the interpretation which is most
favourable to the consumer shall prevail but this rule shall not apply in proceedings brought
under regulation 12.

Yep, use this sort of argument instead, as regards the signage. So the heading could be:

4. The signage was not clear and did not address any requirement for large vehicles to purchase two tickets - so there was no valid contract formed with the driver

...and you will need to then re-write that paragraph concentrating on the fact the sign do not actually create this contravention, certainly do not make it clear that anyone has to pay two fees, and so is not capable of having created that as a contractual agreement - you cannot agree what is not written there! Then include in that paragraph the wording from hoohoo.

And change this:

This bit isn't true. I contacted Armtrac directly and they issued a new code.

I had to complain to the BPA, who ordered Armtrac to issue a fresh POPLA code to me and others similarly disadvantaged by their sharp practice.

to this: I had to complain to Armtrac to get a fresh POPLA code, to address the matter of their unacceptable delay.



BTW I am Mrs Coupon-mad!

Gollygumdrops

Hi there, sorry to hi-jack your thread but I have never started a thread before and despite spending ages looking on this site I can't find how to start my own thread. I have watched the tutorial but my screen is slightly different to theirs and I can't seem to find the start thread button. Any help please.

Coupon-mad

Gollygumdrops wrote: »

Hi there, sorry to hi-jack your thread but I have never started a thread before and despite spending ages looking on this site I can't find how to start my own thread. I have watched the tutorial but my screen is slightly different to theirs and I can't seem to find the start thread button. Any help please.

Use the FORUM JUMP (APPEARS TWICE ON THE RIGHT OF EVERY PAGE) and click GO. That takes you to page one of the threads but please please please please don't just launch in with a new thread!

That's what the top threads are at the top for - there's one called 'NEWBIES PLEASE READ THESE FAQS FIRST' which answers all your questions and shouldn't then need you to start the new thread (blue button on page one if you still need to, AFTER reading the Newbies thread).

NFA

Coupon-mad wrote: »

BTW I am Mrs Coupon-mad!

Ooops, sorry. Thank you Mrs Coupon-Mad!

NFA

Hey Guys,

I've been off the radar as I had to go away for work last week. Could you tell me how this is looking please?

I'd like to get it in ASAP as I have to go away for work again, maybe over Christmas, booo!

Thanks again!

[FONT=&quot]Dear POPLA,

I would like to confirm that I am not the registered keeper of the vehicle XXXXXX and in addition I am not liable for PCN 0000XXXXX issues by KBT Cornwall Ltd (Armtrac). I am appealing the PCN on behalf of all parties involved in disputing the PCN. I wish to appeal on the grounds numbered 1 - 4 as outlined below:

1. The charge is not a genuine pre-estimate of loss.

The amount of the charge is disproportionate to the loss incurred by KBT Cornwall Ltd (Armtrac) and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to be a penalty because KBT Cornwall Ltd (Armtrac) have alleged a breach of terms and conditions and yet have not quantified their alleged loss (which cannot include business running costs nor the POPLA fee)

The £100 is a sum 'plucked out of the air' by the operator and it bears no relation to any loss. My proposition is that £100 was chosen because it happens to be the maximum figure the BPA feel is a 'tolerable' amount to impose on motorists, when compared to PCNs issued by Councils on street. There is no valid comparison with a private firm alleging 'breach' in order to maximise their own profits and a real PCN from a Council - but the BPA admitted to the Government that Council PCN amounts were the basis of that figure.

I require KBT Cornwall Ltd (Armtrac) to explain and provide evidence and a breakdown of calculations behind this pre-estimate charge.

To support my claim, in the 2014 POPLA Annual Report the Lead Adjudicator, Mr Greenslade, stated, “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

If KBT Cornwall Ltd presents what they describe as a GPEOL statement I require them to show documentary evidence regarding exactly when this 'pre-estimate of loss' was discussed with the landowner in advance, and/or at any substantive meeting. How/when were these calculations made and on what basis? I put KBT Cornwall Ltd (Armtrac) to strict proof that they ever had such a meeting.

If there was no meeting to discuss the £100 charge in advance then there was never a pre-estimate of loss discussion at all, as was found in April 2013 in 1IR65128 Brookfield Aviation Int. Ltd. v Van Boekel, where by HHJ Hand QC concluded in his summary at 94:

''I do not believe the evidence...that there was ever an attempt at a genuine pre-estimate of loss. I have found that there was no meeting in 2007...it seems to me that a conclusion that there was never any attempt at a genuine pre-estimate of loss is of some significance...Finally, the fact that the figure was arrived at by reference to what pilots might be prepared to tolerate...shows to my mind that in so far as the Claimant made any calculation as to amount, that calculation related to the balance between deterring breach and enforcing the notice period on the one hand and deterring recruitment on the other. In short, the sum stipulated for was not a genuine pre-estimate of loss but an “in terrorem” sum to deter breach and as such is a penalty.''

A direct comparison can be drawn with Brookfield v Van Boekel that, so far as KBT Cornwall Ltd (Armtrac) made any calculation as to amount, that calculation related to the balance between deterring breach and enforcement on the one hand and deterring customers, on the other. £100 was simply the maximum set by the BPA, a sum which motorists might 'tolerate'.

I contend that the figure of £100 is a penalty clause in terrorem to deter breach, neither can it be commercially justified.

POPLA Assessor Chris Adamson stated in June 2014 that:
''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”. This supports the principle 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 reasonably 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.''

Additionally – As you can see the from the attached photos, the day that the PCN was issued, the car park was less than half full, meaning that the land owner/KBT Cornwall Ltd (Armtrac) would have suffered no loss due to the vehicle in question.


2. No standing/authority to form contracts with motorists


I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give KBT Cornwall Ltd (Armtrac) any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, KBT Cornwall Ltd (Armtrac) lack of title in this land means they have no standing to allege trespass or toss, if that is the basis of their charge. I put KBT Cornwall Ltd (Armtrac) to strict proof to provide an unredacted, contemporaneous copy of the contract which - to demonstrate standing and authority - must specifically state that KBT Cornwall Ltd (Armtrac) can make contracts with drivers themselves and that they have full authority to pursue charges in court in their own name. A witness statement to the effect that a contract is in place will not be sufficient because it will not show which restrictions are to be enforced, what the times/dates/details of enforcement are. How will I know that the landholder contract allows KBT Cornwall Ltd (Armtrac) to charge £100 for this particular contravention if the contract is not produced? Showing a piece of paper signed by someone who has never seen the actual contract, saying merely that KBT Cornwall Ltd (Armtrac) can put up signs and 'issue parking charges' would not prove that they can form contracts with drivers nor show that they can charge this amount for this contravention.

I contend that KBT Cornwall Ltd (Armtrac) are only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS -v- HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

I believe there is no contract with the Landowner/occupier that entitles them to LEVY these charges and therefore has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to KBT Cornwall Ltd (Armtrac) to prove otherwise so I require that KBT Cornwall Ltd (Armtrac) produces a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it.

Even if a basic contract is produced and mentions PCN’s, 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 KBT Cornwall Ltd (Armtrac) and the owner/occupier, containing nothing that KBT Cornwall Ltd (Armtrac) can lawfully use in their own name as a mere agent, that could impact on a third party customer.

3. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).

I was not the driver, I was merely the passenger but Armtrac never asked or established who was driving. However, I have the right to appeal to POPLA because I was the 'keeper' that day (under the POFA definition) as I had borrowed the vehicle from a relative and was in charge of it that day, albeit not driving. So I have only ever appealed as keeper. Yet Armtrac have failed to establish 'keeper liability' as they overlooked the small matter of issuing a Notice to Keeper, which is a prescribed document under the statute. Without that - having neglected to establish who was driving - they have failed to meet the 'second condition' for keeper liability in Schedule 4 and I cannot be held liable now, since they have wasted so much time delaying my POPLA code that they have timed themselves out, beyond day 57.



4. [/FONT][FONT=&quot]The signage was not clear and did not address any requirement for large vehicles to purchase two tickets - [/FONT][FONT=&quot]so there was no valid contract formed between KBT Cornwall Ltd and the driver[/FONT][FONT=&quot]

KBT Cornwall Ltd signs in this car park are unclear, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign, as this is too late. [/FONT]
[FONT=&quot]
Evidence that the signage in this car park is unclear can be found in the documentation sent from KBT Cornwall Ltd on the 01/11/14 . As you can see, KBT Cornwall Ltd has sent a photograph of a WARNING notice which appears to be pinned to an office wall. I wish to point out that photographing a poster on a wall is not evidence of the signage.

Furthermore, the photographic evidence that they have sent of the signage in the car park adequately demonstrates that the signage is written in a font so small that even a photograph taken from three meters away can not accurately resolve the font used, meaning that a driver entering the car park would neither be able to read and understand the text, nor have the relevant information on which to base a contractual decision.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Even if the signage had have been written in such a way that the driver were able to read the terms and conditions of the contract, the signage is still unclear and doesn’t adequately explain why a PCN was issued in to the vehicle in question. Given that the reason for issuing a PCN has changed from “Causing an obstruction” to “Not Wholly Parked within a Bay”, it is difficult to specify which part of the terms and conditions apply to the issued PCN. However, it is clear from the photographic evidence that the said vehicle is not causing an obstruction and therefore the original contravention does not apply. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]In their letter dated 01/11/14, KBT Cornwall Ltd changed their reason for upholding the PCN to “Not Parked Wholly Within One Bay”. As you can see from their own documentation, nowhere does it suggest that cars must be parked wholly within one bay. In actual fact, their own signage says “any vehicle parked outside of marked bays or causing an obstruction will be issued with PCN”. With “Bays” being plural, you can clearly see that the vehicle in question is very much parked within the marked bays.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]KBT Cornwall Ltd has stated in their letter that “When parking at this site and needing to park over two bays, you needed to purchase two Pay and Display tickets”. As you can see from their photographic evidence or their own signage, nowhere does it state that this protocol must be followed when parking over two bays. KBT Cornwall Ltd have suggested that the driver should have assumed that this is the correct procedure when entering the car park in a large vehicle. Additionally, having purchased two tickets would have not meant that the vehicle in question was parked wholly within two bays, nor would have become less of an obstruction (original reason for issuing) and therefore would have remained subject to a PCN.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]As previously stated, the signage is unclear – to the point that even KBT Cornwall Ltd are unclear as to the reason for issuing the PCN. It can not be assumed that the driver should know the terms and conditions of the car park unless they are clearly stated in plain, legible text on appropriate signs. To support this;[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The Unfair Terms in Consumer Contract Regulations 1999 applies. Section 7 states that where there is any ambiguity, it should be resolved to the advantage of the consumer.

Written contracts
7.—(1) A seller or supplier shall ensure that any written term of a contract is expressed in plain, intelligible language.
(2) If there is doubt about the meaning of a written term, the interpretation which is most favorable to the consumer shall prevail but this rule shall not apply in proceedings brought under regulation 12.[/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
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Additional information;

The reason for issuing the PCN is unclear. The reason stated on the PCN is “The vehicle was causing an obstruction”, however, as you can see from the attached photos, the vehicle in question is not causing an obstruction to traffic or pedestrians. In KBT Cornwall Ltd’s correspondence on the 01/11/14, they have stated that the reason from the PCN was for “Not Parked Wholly Within Bay”. I would like to draw your attention to their own signage that states “any vehicles parked outside of marked bays will be issued with a Parking Charge Notice”. Emphasis on “Bays” being plural, the vehicle is most certainly parked within the “bays”. They have also added that that the driver should have bought a second ticket whilst parked across two bays. Upon further inspection of their terms and conditions, I can find no evidence that KBT Cornwall Ltd have stipulated that a large vehicle covering two bays must purchase two tickets. Given that the car park destination is a seaside resort and frequently visited by camper-vans, KBT Cornwall Ltd should have had the foresight to have stipulated a protocol for such an event rather than relying upon the driver to assume protocol.

As you can see in the photos attached at the pay point, the maximum fee is £4.90. Considering that all of KBT Cornwall Ltd (Armtrac) signage consistently refers to the “vehicle”, it would be fair to deduce that the maximum fee stipulated on the pay machine of £4.90 is “per vehicle”. That is the amount that was purchased for the said vehicle on the day that the PCN was issued. Furthermore, had there been a second ticket attached to the said vehicle, would that have absolved the supposed offence of being parked outside of the marked bays? This appears to be a very deliberate blurring of the rules in order to impose an unreasonable charge.

Armtrac failed to respond to my initial appeal within the 35 days promised in their letter dated 01/11/14. They in fact took 57 days to respond and consequently, by the time their response was received, the POPLA verification code had only 1 day before expiration, meaning that there was not enough reasonable time to assemble an appeal. Having read of numerous similar cases, I believe that Armtrac are deliberately using this delay tactic in order to avoid having disputes brought against them and in doing so are making a mockery of the entire appeals process. [/FONT][FONT=&quot]I had to complain to Armtrac to get a fresh POPLA code, to address the matter of their unacceptable delay. [/FONT][FONT=&quot]This has been raised with the POPLA Scrutiny Committee by an interested person, this week.

l submit this purported charge is not legal and therefore respectfully request that my appeal is upheld and the charge is dismissed and that KBT Cornwall Ltd (Armtrac) should cease pursuing this forthwith. [/FONT]

Coupon-mad

That will win, yep! Get it sent to POPLA online and tick 3 out of 4 appeal reasons boxes - it is obvious which one doesn't apply.