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First draft POPLA appeal Now Won

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Fight_the_good_fight
Fight_the_good_fight Posts: 196 Forumite
:)A vehicle registered to myself received a yellow invoice ticket for staying overnight in a tram station car park in Manchester.
I subsequently recieved a NtK and after following the guidelines on here and pepipoo and submitted a soft appeal for which i recieved the obligatory rejection letter yesterday from Care Parking, with attached POPLA code (expiray date early Jan)

Whilst wiating for the rejection letter i read the numerous posts and prepped my POPLA appeal and was wondering if you fine people could cast an eye and see if my letter is good enough to go. ;)

Go easy on me as first attempt and i have tried to use the time wisely!!:D

Dear POPLA Assessor,

I am the registered keeper of xxxxxx, which is privately owned by myself and I wish to appeal on that basis of being the keeper.

A PCN (ref No xxxxx) issued by Care Parking which was subsequently forwarded to myself the registered keeper by means of Notice to Keeper for an alleged parking contravention at Sale Metrollink on the XX time and dateXX

Following a direct appeal via the company’s own appeal system which was rejected I strongly believe there are a number of significant legal and code of practice deficiencies, which would have not only been the case at the time of issue of the PCN but are similarly present in the rejection of my initial appeal and form the basis of my appeal and are as listed in the bullet points below and which I will expand on as numbered.

1. The Charge is not a genuine pre-estimate of loss (GPEOL)
2 .Mis Use of PoFA 2012 and Relevant Land
3. Lack of clear, readable signage - no contract with driver
4. Lack of standing/authority from landowner.
5. Unreasonable/Unfair Contract Terms.




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

Despite the protestations in the rejection letter from Care Parking, the truth is there is no implied (or otherwise) acceptance of any charge in the BPA Code of Practice (CoP). In fact 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.’

On receipt of the Notice to Keeper (NtK) outlining the alleged parking offence I visited the location as above and with some difficulty due to the height of said signs noted the wording “Charges will be issued for Contravening the Parking Restrictions” i.e. as along with their rejection letter to my appeal a “breach of terms and conditions”

Firstly in view of this point I put Care Parking to prove beyond a reasonable doubt that the charge levied namely £100 is a genuine pre estimate of loss (GPEOL) and one where I wish to highlight the following

The car park mentioned in the NtK is a FREE car park and at the time of the alleged parking contravention was outside of the operating times of the tram service and as such there would be no loss of income flow to Care Parking or the unnamed agents who they allege to be acting on behalf of and nor can it be evidenced any potential future loss of income from a FREE car park from this alleged parking contravention.

With this in mind I strongly believe that Care Parking would not be able to demonstrate any initial quantifiable loss and to be potentially enforceable the operator would have to show that the parking charge must be shown to be an estimate of a likely loss flowing from the alleged parking contravention at the time of the alleged incident only.

An example being from loss of revenue from failure to pay a tariff would be a potential loss of revenue; however as already highlighted this is a free car park and at the time of the alleged contravention outside of tram operating hours so there would be NO loss to either Care Parking or their client.

It is important to note that an initial loss is fundamental to a parking charge and, without it, costs subsequently incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged parking contravention. Though not an exhaustive list, examples of subsequent business costs would include normal operational costs and any tax-deductible back office functions, debt collection, etc.

Again I would put Care Parking Ltd to the strictest proof to evidence that if the vehicle registered to myself had not allegedly committed a parking contravention they would be in entirely the same position, namely incurring exactly the same business costs and as such this model of subsequent costs is not a genuine loss that is being pursued.

I look forward to hearing from Care Parking whether they deem this matter to be a Contractual Charge or one of damages for Breach of Contract and on doing so eagerly await their calculations including a full break down of how they arrive at the current figure.

I wish to thank Care Parking for pointing out the judgement passed by HHJ Moloney QC and believe the case they are referring to be Parking Eye V Bevis which I am fully conversant with and as when judgement was passed with some reservations and as anticipated by the Judge to be appealed, which is the case in February 2015 a matter not eluded to in the rejection letter by Care Parking,
To rely or base a defence on such a matter when the case is due in the Court of Appeal and not mention the numerous of previous cases which have found in favour of the appellants when they have challenged GPEOL at court may appear more than a little underhand.




2 Mis Use of PoFA 2012/Relevant Land.

On receipt of the NtK which I believe must be a template letter sent out, there is reference made to Section 4 of the PoFA 2012 in that Care Parking have the right to pursue the Keeper for any unpaid fees and escalate to their own Debt Recovery or even commence court proceedings with an escalating fees of £150 or driver details to be provided.

It would be remiss of me at this point not to mention and to the best of my knowledge following extensive research that the landowners for this particular site are Transport for Greater Manchester (TfGM) who converted the old railway station into a Metrolink Station.

Further investigation reveals that a statutory control is in place by way of Byelaws, as per the paragraph below

The Metrolink Sale site where the alleged parking violation occurred is covered by byelaws, as conferred upon it by the Greater Manchester (Light Rapid Transit System) Act 1988 and the Greater Manchester (Light Rapid Transit System) (No2) Act 1988.and highlight point 14 in particular.
A copy of this document is attached to this appeal (appendix A), and available online at (web address given)

If I may then draw the assessor to the following paragraph extracted from Sec 4 of PoFA 2012 which gives an explanation of Relevant Land.
Paragraph 3(1)(c) states that Relevant Land excludes “any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.” and this is later explained in Paragraph 3(3) to be “the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question.” and Paragraph 3(4) “In sub-paragraph (3) “statutory provision” means any provision (apart from this Schedule) contained in … any subordinate legislation, whenever made,
and for this purpose “subordinate legislation” means an Order in Council or any order, regulations, byelaws or other legislative instrument.“


From the above it would appear the car park in question would be classed as “Non Relevant” as per the Act and as is abundantly clear any subsequent use of Section 4 PoFA 2012 inappropriate at best and if prior knowledge of such regulation was proven may be deemed as sharp/aggressive business tactics (bullying) at best or illegal in the pursuance of payment by the registered keeper or inference that such payment should be made by the keeper or requirement in law to name the driver when no such legislation is in force.
In addition to the above and subsequent visit to the car park in question the signage contained within makes no mention of the use of this legislation.

In view of the above I put Care Parking Ltd to the strictest proof that the land is in fact “relevant” land (not owned by TfGM) and there use of Sec 4 PoFA 2012 to pursue the Registered Keeper and not the driver as lawful.



3 Lack of clear, readable signage - no contract with driver


On receipt of the NtK and as previously stated I subsequently visited the location for myself to view the actual signage which even in broad daylight was difficult to read, due to them being fixed directly onto a wall with the lowest edge being between 8ft and 10ft off the ground (see attached photographs exb’s NB1-NB4) and other than the ones attached to the wall no other signs were present.

With this being an alleged night time infringement I made a further visit during the hours of darkness where due to the positioning of the aforementioned signs not only made extremely difficult to locate even when purposefully seeking them out but were completely and utterly impossible to read during the hours of darkness,

It was noted by myself that the actual car park during this visit is set back from the road and surrounded by a large wall protecting the area from any ambient lighting during the hours of darkness and, there is no additional artificial lighting from anywhere within the car park (See Photograph exb NB/XX)
In essence making the total area of the car park pitch black and even with the aid of a torch I was unable to read the terms and conditions contained on the signage
.
In addition apart from difficulties in reading the signage due to the height even during daylight it was noted this was not helped by the colour of placard and colouring of the letters used, white on purple and even when a light was shone directly via a torch at night that a non-reflective board had been used.

Furthermore I do not believe there to be an effective entry sign warning drivers of the parking limitations or being a managed site and only noted one was in place on a further visit. This in part due to being positioned on a wall that is partially hidden by waiting taxi’s and is adjacent to the entrance road (90 degrees to drivers eye line when entering)

In light of the above points I wish to bring the attention of the assessor the following points

For a contract to exist in such circumstances there is more than the general belief that signage and all terms are required to be so prominent and the risk of a charge so transparent that the information in its entirety must be clearly seen/accepted by the driver.

As has been evidenced by my outline of the signage, including positioning, lack of lighting by any means and backed up by supporting photographic evidence I would strongly argue that the signage is not sufficiently prominent for the driver to discern before entering the car park or subsequently parking up and as a result knowingly enter into a contract, be aware of the terms and conditions or possible subsequent consequences for breaching such conditions so could not possibly enter into such a contract

I put it to Care Parking to prove beyond all reasonable doubt that the legibility of the signs throughout the car park were sufficient on the date and time of the alleged offence, paying particular attention to this being an alleged night time occurrence.

I would argue that on a number of points that the signage fails to comply with a number points of BPA’s code of practice for which Care Parking are a member and draw the assessor’s attention to the following passage taken from BPA’s own CoP 2014

“Signs should be readable and understandable at all times,
Including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This
can be achieved in a variety of ways such as by direct lighting or
by using the lighting for the parking area. If the sign itself is not
directly or indirectly lit, we suggest that it should be made of a
retro-reflective material similar to that used on public roads and
described in the Traffic Signs Manual. Dark-coloured areas do
not need to be reflective.”


From my own observations and evidence it is apparent that there is no effective entrance sign, no lighting on site and any sign that the driver may have passed is certainly not prominent, nor reflective and was placed far too high to be lit by headlights.


I put Care Parking to strict proof otherwise; as well as a site map including height of their sinage, they must show photos in darkness taken without a camera flash.



4. Lack of standing/authority from landowner

Care Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Care Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). I strongly believe that Care Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied showing that Care Parking are entitled to pursue these charges in their own right in the courts.

I require Care Parking to provide a full, contemporaneous, non-redacted copy of the contract signed & dated with the landowner.

I would suggest that any contract is not compliant with the requirements set out in the BPA CoP and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park.

In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA CoP, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

Failure to provide the full and un redacted contract I would deem as impossible for myself to provide a full defence and detrimental to proving my innocence and would ask that if the full contract is not forthcoming that an adverse inference is drawn from the refusal to provide a copy




5. Unreasonable/Unfair Contract 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 too 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 fulfil 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 does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.


In summary, Care Parking are attempting to enforce a punitive charge for an alleged infringement, thinly disguised as a contractual charge, which breaches the Unfair Terms in Consumer Contracts Regulations, which they have no authority to issue in the first instance and which they have no reliable means of proving ever took place at all at the times stated.

In view of the above I respectfully request that after careful and consideration of each point that this PCN is invalid and should be cancelled without prejudice

Yours Sincerely
xxxxxxxxx
.
I Am Charlie

Comments

  • Very good and ready to go. Give yourself a massive pat on the back for this - many others prefer being spoon-fed.

    I do like the research on the Byelaws, I couldn't find those bits when I was looking.

    I trust you have complained very strongly to the councillors, TfGM and the local papers. Some poor soul had a letter in the Bury Times this week but have paid their charge believing they had no hope of success - I do wish they'd come here first.
  • Umkomaas
    Umkomaas Posts: 43,383 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    edited 12 December 2014 at 5:54PM
    and as when judgement was passed with some reservations and as anticipated by the Judge to be appealed

    A bit jumbled and difficult to understand - needs reworking.
    eluded

    Alluded
    the numerous of previous cases

    Either 'the number of previous cases' or 'the numerous previous cases'
    From the above it would appear the car park in question would be classed as “Non Relevant” as per the Act and as is abundantly clear any subsequent use of Section 4 PoFA 2012 inappropriate at best and if prior knowledge of such regulation was proven may be deemed as sharp/aggressive business tactics (bullying) at best or illegal in the pursuance of payment by the registered keeper or inference that such payment should be made by the keeper or requirement in law to name the driver when no such legislation is in force.

    That's one loooong sentence buddy. Could do with at least some punctuation to make more readable. The odd comma or two wouldn't go amiss!

    ...would be classed as 'Non Relevant' should read 'Not on Relevant Land'.
    Failure to provide the full and un redacted contract I would deem as impossible for myself to provide a full defence and detrimental to proving my innocence and would ask that if the full contract is not forthcoming that an adverse inference is drawn from the refusal to provide a copy

    Unredacted (one word).

    Innocence? You can't be 'innocent' or 'guilty' in the case of a disputed speculative invoice. This isn't a criminal trial (although could be if pursuit was under byelaws :rotfl:) . Get rid of that bit.
    In view of the above I respectfully request that after careful [STRIKE]and[/STRIKE] consideration of each point that this PCN [STRIKE]is invalid and[/STRIKE] should be cancelled [STRIKE]without prejudice[/STRIKE]

    See strike-throughs.

    'Without prejudice' - what do you mean?
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .

    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.

    Private Parking Firms - Killing the High Street
  • Thanks for the replies and the points raised by Umkomass and rest assured I will rectify before submitting.

    I will ensure that I put up details of the website re the Byelaws for future reference.

    Keep up the good work :)
    I Am Charlie
  • Hi, glad I saw this thread as I too am about to start drafting a POPLA appeal regarding a parking charge from Care Parking. Basically parked in tram car park, got tram into town, picked car up following morning - 6 weeks later £100 charge for using car park outside tram hours!!
    Good Luck
  • Apologies for delay but here is the link for metrolink byelaws, metrolink.co.uk/Documents/Byelaws.pdf

    Further question, when submitting POPLA appeal whose responsibility is it to forward my appeal to the PPC and if the PPC provide an evidence pack who forwards that onto myself?

    Thanks
    I Am Charlie
  • Received notification today from POPLA that care parking had decided to fold before the appeal and PCN will be cancelled :j

    Now to take up the real fight with TfGM and DVLA in allowing PPC's to use POFA 2012 on non relevant land. :money:

    Thanks for all the help :beer:
    I Am Charlie
  • Coupon-mad
    Coupon-mad Posts: 152,070 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    Good stuff!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Apologies for bumping this however kicking of in my local rag Manchester Evening News where I am doing my bit to educate and advise them re a similar situation to mine and to come here for help
    I Am Charlie
  • The_Deep
    The_Deep Posts: 16,830 Forumite
    edited 27 April 2015 at 12:00PM
    The signs in the newspaper article appear to be too high and too small to be read.
    You never know how far you can go until you go too far.
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