Premier Park Ltd PCN through post

hoohoo

Well, this will be a killer point in your POPLA appeal

Another point (I think its probably irrelevant, but just in case) is that the time on the sticky PCN and the sent one are different by an hour or more.

According to POFA 2012 both notices must contain the same information. As they do not, the keeper cannot be liable, only the driver.

As they dont know who the driver is, they are stuffed.

alec-50761

Please see my first draft below. If there's anything obvious I have missed please shout out. Thanks in advance for looking.

Dear Sir/Madam,
RE: POPLA XXXXXXX

Parking Charge Notice (PCN): XXXXXXXXXX
Vehicle Reg: XXXXXXX
Date of Issue: 03/12/14
Company in question: Premier Park Ltd (PPL)

On the above date, I was issued with a PCN for parking without a valid permit at Oakfield Gardens, Southampton. This was in the car park belonging to the flat development that I currently rent a flat in. There were no signs anywhere near my car and I did not observe any signs on entry to the area, in addition to this my landlord had not been made aware of any changes in site management from the property agents Radian Ltd.

I must also make the point that nothing in this appeal should be taken to mean that I was the driver of the vehicle. I am the registered keeper and decline to provide driver details, as is my right under POFA 2012.

The car was only parked as it was assumed to be allowed, the signage was extremely poor and did not demonstrate that separate spaces were allocated to different groups of users. The signs that were present were hidden and had no retro-reflective aspects. The signs were also conspicuous in their design replicating the previous parking companies signs which did not differentiate between parking spaces as long as a permit for the development was displayed.

I challenged this notice on a number of issues. I then received a rejection with regards to the alleged contravention. Attached to the rejection was a web address to submit the appeal and a verification code.

I would like to appeal this notice on the following grounds.

1. Lack of signage
2. No contract with the site that permits levying charge
3. Inappropriate parking charge
4. No breach/trespass
5. The parking ticket and notice to keeper were not POFA 2012 compliant.
6. Unreasonable/Unfair terms

1. Lack of signage

There is/was categorically no contract between the driver and PPL, the signs were not visible and there was no obvious indication as to a change in parking management strategy. There were no large BPA standard signs around the car park and therefore there was no way an alleged contract or restrictions could be assumed. I would certainly not have agreed to pay this extortionate 'charge' under any circumstances.

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness:

''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.

There were no signs at all located near the car in question. I request PPL to supply POPLA with photographic evidence of the parking signs compared with those previously fitted, both during the day and at night. These should be around the bay in which the vehicle in question was parked.

2. No contract with the site that permits levying charges

The PPL parking notice states that it has been served on behalf of the landowner. However, I doubt that PPL has the legal status and overriding right to pursue parking charge notices. BPA CoP paragraphs 7.1 and 7.2 dictate some of the required working wording I therefore require PPL to supply and POPLA to review:

• A copy of the current signed site agreement or contract with the development managerial company
• A copy of the current signed agreement or contract with the landlord/landowner of the property and development managerial company defining the right to manage the parking facilities and levy fines.
• A contract between I, the tenant, and the landlord passing on the requirements with regard to parking.
• A copy of the wording of the current imposed permit scheme with proof that the landowner has agreed to/been informed about it.
• A current map of all the areas and bays of that car park where the permit scheme is and is not applicable, as agreed with the landowner/occupier.
• Proof that PPL have the right to charge and pursue motorists who have the right to park on the premises.

3. Inappropriate parking charge

The demand for a payment of £100 as noted within the Parking Charge is a punitive amount that has no relationship to the loss that would have been suffered by the Landowner. 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.

I require PPL to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses.

Further to this My landlord has paid for use of the car park and so there has been no loss incurred as the space used was paid for.

4. No breach/trespass

If there was no contract, then at most the allegation can only be a civil trespass. This is denied - and indeed the PPL ticket did not mention trespass nor breach, so there is no charge applicable. However if PPL do now try to allege that this is the nature of this 'charge' then the driver would be potentially only be liable for damages owed to the owner/occupier who may have suffered a loss.

I am an occupier of the property and since no ‘damage’ occurred in the car park and also given the fact that the car park was not completely full in short time the car was on site, there was in fact no loss at all and this charge is purely a profiteering penalty, out of all proportion.

5. Notices not POFA 2012 compliant

The notices to keeper and driver were both non compliant with POFA. Firstly no period was specified for which the vehicle was parked. The notices also fail to identify a “creditor” and as such remain an open ended invoice not addressed to anyone in particular.

This also means that keeper liability does not apply. As such I decline to name the driver, which is my right. PPL have failed to provide driver details and evidence so no charge is applicable.

Another issue is that the wording on the signs and notices is such as to make the cause for the charge unclear. The wording suggests that the charge is due to a contract invoked upon the driver of the vehicle. But then stipulates that the vehicle must meet certain criteria, meaning the charge must be genuine pre estimate of loss. These cannot both be true and as such invalidate the parking restrictions.

5. Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

An unlit sign of terms placed to high to read, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 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."

Furthermore, Regulation 5(1) states that:

"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".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

With all this in mind, I require POPLA to inform PPL to cancel the PCN.

Yours faithfully,

XXXXXXXXXXX

alec-50761

Thanks for the encouragement as well, it's much appreciated. Seems like so much fuss over nothing, don't know why
PPC s bother haha

Coupon-mad

You have 2 x '#5' appeal points and have not included hoohoo's words in your points about what's wrong with the Notice to Keeper, at least I couldn't see it. Also the template you found looks quite old, as we would not call a point '3. Inappropriate parking charge' we would call it '3. The charge is not based on a genuine pre-estimate of loss'.

Search the forum for the word 'analogous' to find better wording for the point #3 (quoting from a POPLA Assessor) about how a lack of permit is not analogous with pay and display...and in any case POPLA is too remote a possibility as only 1% of cases go to POPLA' etc.

And look, whoops, go through it and weed out mistakes like this one!

...and I did not observe any signs on entry to the area, in addition to this my landlord had not been made aware of any changes in site management from the property agents Radian Ltd.

I must also make the point that nothing in this appeal should be taken to mean that I was the driver of the vehicle...

alec-50761

Thanks coupon-mad.

I have amended the appeal as follows

Dear Sir/Madam,
RE: POPLA XXXXXXX

Parking Charge Notice (PCN): XXXXXXXXXX
Vehicle Reg: XXXXXXX
Date of Issue: 03/12/14
Company in question: Premier Park Ltd (PPL)

On the above date I was issued with a PCN for parking without a valid permit at Oakfield Gardens, Southampton. This was in the car park belonging to the flat development that I currently rent a flat in. There were no signs anywhere near my car nor at the entrance to the area, in addition to this my landlord had not been made aware of any changes in site management from the property agents Radian Ltd.

I must also make the point that nothing in this appeal should be taken to mean that I was the driver of the vehicle. I am the registered keeper and decline to provide driver details, as is my right under POFA 2012.

The car was only parked as it was assumed to be allowed, the signage was extremely poor and did not demonstrate that separate spaces were allocated to different groups of users. The signs that were present were hidden and had no retro-reflective aspects. The signs were also conspicuous in their design replicating the previous parking companies signs which did not differentiate between parking spaces as long as a permit for the development was displayed.

I challenged this notice on a number of issues. I then received a rejection with regards to the alleged contravention. Attached to the rejection was a web address to submit the appeal and a verification code.

I would like to appeal this notice on the following grounds.

1. Lack of signage
2. No contract with the site that permits levying charge
3. The charge is not based on a genuine pre estimate of loss
4. No breach/trespass
5. The parking ticket and notice to keeper were not POFA 2012 compliant.
6. Unreasonable/Unfair terms

1. Lack of signage

There is/was categorically no contract between the driver and PPL, the signs were not visible and there was no obvious indication as to a change in parking management strategy. There were no large BPA standard signs around the car park and therefore there was no way an alleged contract or restrictions could be assumed. I would certainly not have agreed to pay this extortionate 'charge' under any circumstances.

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness:

''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.

There were no signs at all located near the car in question. I request PPL to supply POPLA with photographic evidence of the parking signs compared with those previously fitted, both during the day and at night. These should be around the bay in which the vehicle in question was parked.

2. No contract with the site that permits levying charges

The PPL parking notice states that it has been served on behalf of the landowner. However, I doubt that PPL has the legal status and overriding right to pursue parking charge notices. BPA CoP paragraphs 7.1 and 7.2 dictate some of the required working wording I therefore require PPL to supply and POPLA to review:

• A copy of the current signed site agreement or contract with the development managerial company
• A copy of the current signed agreement or contract with the landlord/landowner of the property and development managerial company defining the right to manage the parking facilities and levy fines.
• A contract between I, the tenant, and the landlord passing on the requirements with regard to parking.
• A copy of the wording of the current imposed permit scheme with proof that the landowner has agreed to/been informed about it.
• A current map of all the areas and bays of that car park where the permit scheme is and is not applicable, as agreed with the landowner/occupier.
• Proof that PPL have the right to charge and pursue motorists who have the right to park on the premises.

3. The charge is not based on a genuine pre estimate of loss

PPL cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged 'breach’ of ‘terms and conditions' in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach.

In any case, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from a parking event. I require the Operator to provide a detailed breakdown of their loss and on what basis this can be their loss at all. Overheads such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all. The Office of Fair Trading has stated to the BPA Ltd 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.

At no point have PPL explained what loss they have accrued nor justified the £100 charge.

In this case no loss exists so there is no initial sum to pursue, and they certainly cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage. The same is true of the parking attendant who is already paid to visit sites and take photos & issue PCNs, and is not significantly diverted from this activity when a car is considered to be parked in breach.

Judge Charles Harris QC in 'A Retailer v Ms B' stated:

[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed.

POPLA Senior Assessor Chris Adamson stated on 3rd December 2014 in POPLA decision Reference 6862654003 which is relevant as it is a permit case:

Permits are not analogous with pay and display tickets, which are bought for an individual stay and represent proof of purchase. [...]The Operator has provided no other evidence of any initial loss.

The same Assessor has also summed up many decisions thus:

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.

Therefore PPL have no case to pursue.

4. No breach/trespass

If there was no contract, then at most the allegation can only be a civil trespass. This is denied - and indeed the PPL ticket did not mention trespass nor breach, so there is no charge applicable. However if PPL do now try to allege that this is the nature of this 'charge' then the driver would be potentially only be liable for damages owed to the owner/occupier who may have suffered a loss.

I am an occupier of the property and since no ‘damage’ occurred in the car park and also given the fact that the car park was not completely full in short time the car was on site, there was in fact no loss at all and this charge is purely a profiteering penalty, out of all proportion.

5. Notices not POFA 2012 compliant

The notices to keeper and driver were both non compliant with POFA. Firstly no period was specified for which the vehicle was parked. The notices also fail to identify a “creditor” and as such remain an open ended invoice not addressed to anyone in particular.

This also means that keeper liability does not apply. As such I decline to name the driver, which is my right. PPL have failed to provide driver details and evidence so no charge is applicable.

Another issue is that the wording on the signs and notices is such as to make the cause for the charge unclear. The wording suggests that the charge is due to a contract invoked upon the driver of the vehicle. But then stipulates that the vehicle must meet certain criteria, meaning the charge must be genuine pre estimate of loss. These cannot both be true and as such invalidate the parking restrictions.

Further to this if both the notice to driver and notice to keeper are compared the stated times are approximately an hour apart. This further invalidates the notices meaning the keeper can not be chased for the charges.

6. Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

An unlit sign of terms placed to high to read, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 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."

Furthermore, Regulation 5(1) states that:

"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".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

With all this in mind, I require POPLA to inform PPL to cancel the PCN.

Yours faithfully,

XXXXXXXXXXX

What do people think?

Thanks once again for your time.

soton_25

How did you get on. I have a Southampton based premier park PCN to deal with too