POPLA Appeal - Any advice?

minutesago

I've taken bits and pieces from various threads (thanks to all the appellants who have gone before me) and tried to put in the information which seems to best suit the case. Any help or advice would be gratefully received.

1) Breach of Disability Law
The registered keeper of the vehicle is registered disabled. The Equality Act 2010 takes precedence over any ‘contractual’ terms and conditions and I specifically draw this current disability law to the attention of the POPLA adjudicators.
It is a fact that the occupant has 'Protected Characteristics' under the Act which extends to them the unequivocal right to use any 'reasonable adjustment' provided by any landholder/client/operator when visiting a customer-facing environment, including car parks. In short, the Act says that protected people and their carers can legally use any disability provision applicable to them, unharassed, and in the case of a disabled bay this would be with or without a Blue Badge (the Act has nothing to say about permits and badges of course because the legal right is established by need).

CPM has an ongoing legal duty to observe and comply with the Act and to make regular operational adjustments to identify, consider and avoid any potential adverse repercussions affecting disabled people's legal rights.

2) 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 “no parking outside of a designated parking area/parking bay” consequently I contend, and the BPA code of practice states, that a charge for breach must be based on a 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.

A valid parking permit was on display and 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 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 as this is a free car park and no sum is due to either the Operator or 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. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can be neither be commercially justified or proved to be a genuine pre estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.

3) Contract with Landowner

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).

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 nor 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 provide 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.

4) Inadequate Signage
The signage is not readable so no valid contract can be formed between CPM and the driver. The signage is unlit and unreadable in dark conditions.

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 inconspicuous, unable to be read due to height, design, positioning, lighting, font size used and being unlit in the dark, breaches this code.

I therefore require that the Operator submit evidence of the "clear and prominent signage throughout the development" referred to in their rejection letter in the form of site maps and photographs clearly indicating the location and height of said signage at the time of the alleged breach.

5) The alleged contravention did not occur.
The rejected appeal letter states that “the vehicle did not park within a designated area/parking bay”. In fact, in this parking area the “bays” are not clearly laid out and regardless of this, the vehicle did display a valid parking permit.
I contest that this shows that the contravention as described did not and could not have occurred and as such no damages can flow and if CPM are unable to rebut my challenge then I submit that my assertion that the contravention did not take place is upheld.

Fruitcake

That looks like a winner to me. Just one pedantic point though; there is no such thing as registered disabled. There is no register of disabled people.

Perhaps change your first paragraph to something like this.

The registered keeper of the vehicle is [STRIKE]registered[/STRIKE] disabled. The keeper has protected characteristics and as such is covered by the Equality Act 2010 which takes precedence over any ‘contractual’ terms and conditions and I specifically draw this current disability law to the attention of the POPLA adjudicators.

Umkomaas

You seem to have two separate threads running on the same topic. Please keep everything in one thread otherwise there'll be comments made on each, which won't necessarily coordinate, leaving you potentially with confusion and the possibility of an expensive error. Please PM Crabman, forum guide, to merge both.

Your appeal looks OK to go, but just a query on one point you've made:

I assert that being inconspicuous, unable to be read due to height, design, positioning, lighting, font size used and being unlit in the dark, breaches this code.

Was it dark at the time if your 'contravention', if not 'unlit in the dark' is not relevant? Otherwise, if after 24 hours there are no further comments, submit to POPLA via their website portal, tick three of the four 'reasons' boxes - obviously not the obvious one!