Please help - Newbie POPLA stage UK CPM parking outside Designated area

P-man_2

I have been photographed by UK CPM at a small local retail centre and received a Parking Charge Notice for parking outside of a designated parking area /bay.

Predictably, my appeal was rejected by UK CPM and I now need to raise a POPLA appeal. I have looked at the Newbie post showing the UK CPM POPLA appeal but would dearly appreciate some help amending it to reflect the following:-

1. The designated spaces were not clearly differentiated or identifiable. The area where I parked looked the same as all the other spaces with no signage indicating that it was not a designated space.

2. I received the PCN on 28 July 2014 and sent back my appeal to UK CPM on 2 August 2014 but the next communication (the rejection letter) was not received until 2nd December 2014 - well outside the 14 or 35 day guidelines issued by BPA.

3. The "issued date" on the original PCN is 25 July 2014 @ 05:47 while the "issue date" on the rejection letter is 29 July 2014. The photograph is dated 18 July 2014 at 16.28 - not sure if this is relevant.

If anyone can suggest how I can incorporate the points above into the existing CPM template, I would be very grateful.

Thanks!

P-man_2

...I wanted to add that this car park had no disabled bays marked and some bays were marked while others weren't - does this have a bearing on my case?

Thanks

Coupon-mad

Wow these dates make no sense:

2. I received the PCN on 28 July 2014 and sent back my appeal to UK CPM on 2 August 2014 but the next communication (the rejection letter) was not received until 2nd December 2014 - well outside the 14 or 35 day guidelines issued by BPA.

3. The "issued date" on the original PCN is 25 July 2014 @ 05:47 while the "issue date" on the rejection letter is 29 July 2014. The photograph is dated 18 July 2014 at 16.28 - not sure if this is relevant.

It's very relevant. I wonder if they are alleging more than one PCN? Was there a windscreen PCN found on the car at all, was this on 28th July?

P-man_2

Thanks Coupon-Mad

There was no ticket ever placed on the car. Both the rejection letter and original PCN show a photo of the car dated 18th July 2014 @ 16:28.

I believe I have only ever parked in that spot once. Incredulously, the issue dates on the original PCN and rejection letter do not match. They have used the same reference number on both letters.

I'm not sure how to relate this point on my POPLA appeal !

Coupon-mad

Use a version based on this POPLA appeal which includes the fact in the final appeal point, that they can't send 'drive-away' postal PCNs like this as it's against the DVLA KADOE contract:

https://forums.moneysavingexpert.com/discussion/comment/66754248#Comment_66754248

You will have to put your own info in where it talks about the signage. Also if you have already admitted in your first appeal that you were driving you can't use the 'NTK establishes no keeper liability' point at all. But you will still win!

P-man_2

Thank you so much Coupon-mad!

I inadvertently admitted that I was driving in my appeal to UK CPM - so I'll leave out the keeper paragraph. Should I include any details about the ambiguous designated spaces or the date inconsistencies and that the rejection letter was sent 5 months after my appeal?

Also the car park was free - can I still use paragraph 6 in the example linked above?

P-man_2

Thank you yet again Coupon-mad - I really appreciate your help.

I would value your on comments on the following before I send it off to POPLA along with my evidence. Links have been removed as I am a new user and not allowed to use them!

[FONT=&quot]POPLA Number: xxxxxxxxxx[/FONT][FONT=&quot]

Dear POPLA assessor,

[/FONT]
[FONT=&quot]As registered keeper, I wish to appeal. The background is that there was no windscreen ticket applied to the car at all and that UK CPM have blatantly flouted the BPA Code of Practice Version 4 – February 2014.[/FONT]

[FONT=&quot]I have the following appeal points:
[/FONT][FONT=&quot]
1) There was no PCN issued at all. This has left me unsure whether to research paragraph 8 of Schedule 4 of the POFA2012 or paragraph 9 instead. The deadlines for service of an NTK and other facts differ, so this hybrid posted 'Notice' was ambiguous, unfair and has unjustly jeopardised my appeal.
[/FONT][FONT=&quot]
[/FONT][FONT=&quot]2) There is no evidence of any contravention because photos were taken at a distance, by an 'attendant' on a mobile phone camera I believe. [/FONT][FONT=&quot]This merely shows the vehicle on site but the driver was there too. This is not evidence of parking, nor of any contravention whatsoever.

[/FONT]
[FONT=&quot]3)[/FONT][FONT=&quot] UK CPM have not complied with the BPA code of practice in taking so long to reply to my appeal sent by recorded delivery on 2 August 2014 and received by them and signed for on 4 August 2014 @ 10.13. The only reply received to my appeal was the rejection letter received on 3 December 2014 but dated 1 December 2014. This is a gap of approximately 120 days taken for UK CPM to reply to my appeal letter.[/FONT]

[FONT=&quot]This excerpt from the BPA Code of Practice Version 4 – February 2014 clearly demonstrates this:-[/FONT]

[FONT=&quot]“22.8 You must acknowledge or reply to the challenge within 14 days of receiving it. If at first you only acknowledge the challenge, or your reply does not fully resolve it, normally we would expect you to seek the additional information you require from the motorist and accept or reject the challenge in writing not more than 35 days after the information required to resolve it has been received from the motorist. It is acknowledged that in exceptional circumstances, an investigation into a challenge may take longer than 35 days after such information has been received and in these instances the motorist must be advised accordingly and given a date by which they can expect a resolution. If this date cannot be achieved then the motorist must be written to again and a revised resolution date agreed. We may require you to demonstrate that you are keeping to these times”[/FONT]

[FONT=&quot]Furthermore, UK CPM have shown to be completely unprofessional in that there are major discrepancies with the dates on the letters sent to me. Namely, the original “Parking Charge Notice” had an “issued date” of 25 July 2014. The reply to my appeal letter to UK CPM had an “issue date” of 29 July 2014 (both had the same reference number and a picture taken by a hand held camera dated 18 July 2014 @ 16.28)[/FONT]

[FONT=&quot]4) Inadequate, unclear & non-compliant signs and bay markings[/FONT][FONT=&quot]

[/FONT][FONT=&quot]There are a few signs placed high up on lamp posts, but the script on them is small and not clearly legible or written in simple language that is easy for the average person to understand. More importantly, the area in which the car was photographed does not have any signs showing it is any different to any other public parking space on the site. There are no signs indicating if it a designated space or not. I contend, it is impossible for any driver to identify the difference between designated and undesignated spaces. Residents spaces were clearly numbered but all other spaces on the site looked the same and the car was not photographed in a numbered resident bay.[/FONT]
[FONT=&quot]
The sign does not identify, as required for a 'distance contract' within the Consumer Contracts(Information, Cancellation & Additional Payments) Regs
[/FONT][FONT=&quot]
[/FONT][FONT=&quot]''(d) where the trader is acting on behalf of another trader, the geographical address and identity of that other trader;
(e) the geographical address of the place of business of the trader, and, where the trader acts on behalf of another trader, the geographical address of the place of business of that other trader, where the consumer can address any complaints;''[/FONT][FONT=&quot]
[/FONT][FONT=&quot]
In case the Operator dismisses this appeal point, saying merely that this type of contract is exempt from these regulations, I contend it is not because the only exemptions are listed in the Regs and this 'contract' fits none of the stated exemptions. This is certainly not a simple, immediate ‘day to day transaction’ defined by the EU in the Guidance as ‘buying a cup of coffee or a newspaper’. In fact, providing parking spaces as a 'service' for a fee is specifically stated as covered by the Regulations, as shown here in the EU Guidance behind the original Directive upon which the UK Law is based:

[/FONT][FONT=&quot]'' Service contracts...should be included in the scope of this Directive, as well as contracts related to...the rental of accommodation for non-residential purposes[/FONT][FONT=&quot]. [/FONT][FONT=&quot]
For example, renting a parking space...is subject to the Directive. ''
[/FONT][FONT=&quot]

[/FONT][FONT=&quot]5) No contract - and if POPLA find there was one, I hereby cancel it.[/FONT][FONT=&quot]
[/FONT][FONT=&quot]The elements of a contract are missing in this case and the Operator should never have sent me a demand for money. Their 'service' of supposedly offering a parking space was not accepted by the driver. In this instance the alleged contract was not concluded by performance nor did consideration flow between the parties - in short, no parking 'service' was provided.[/FONT][FONT=&quot]

[/FONT][FONT=&quot]Yet this Operator has sent me a NTK charging for a non-existent contract for an unperformed service. As such, under the Unsolicited Goods & Services Act I exercise my right to reject the invoice (NTK). And under the Consumer Regs linked in point #6 I hereby cancel the contract (which is denied anyway) and as soon as this operator reads this they will be deemed to have received my Notice of Cancellation. This is not a situation where a trader can recover a charge and it also breaches the CPUTRs 2008, as amended by regulation 39 of the following:
[/FONT][FONT=&quot]
[/FONT][FONT=&quot]
[/FONT][FONT=&quot]6) Failure to comply with the Consumer Contracts(Information, Cancellation and Additional Payments) Regulations 2013 [/FONT][FONT=&quot]
[/FONT][FONT=&quot]
[/FONT][FONT=&quot]These Regulations apply to all UK consumer contracts from June 2014. This is a service contract* offered by written terms in print on a sign which is a means of distance communication (i.e. not a face-to-face contract in the simultaneous physical presence of the trader and the consumer).
In the UK Regulations:
* “service contract” means a contract, other than a sales contract, under which a trader supplies or agrees to supply a service to a consumer and the consumer pays or agrees to pay the price.''

From the EU Guidance behind the Directive upon which the UK Law is based:
[/FONT][FONT=&quot]
[/FONT][FONT=&quot]''Service contracts...should be included in the scope of this Directive, as well as contracts related to...the rental of accommodation for non-residential purposes[/FONT][FONT=&quot]. [/FONT][FONT=&quot]

For example, renting a parking space...is subject to the Directive. [/FONT][FONT=&quot]''[/FONT][FONT=&quot]

[/FONT][FONT=&quot]Part 4 [/FONT][FONT=&quot]of these Regulations has provisions concerning protection from unsolicited sales and additional charges which have not been expressly agreed in advance (this was an unsolicited ‘service’ not expressly agreed nor performed at all, so this is a breach of the Regulations).
Regulation 39 introduces a new provision into the Consumer Protection from Unfair Trading Regulations 2008 which provides that a consumer is not required to pay for the unsolicited supply of products (as happened here – the NTK is an unsolicited invoice).
Regulation 40 provides that a consumer is not required to make payments in addition to those agreed for the trader’s main obligation, unless the consumer gave express consent before conclusion of the contract (no payments were expressly agreed at all - the driver left).[/FONT][FONT=&quot]
[/FONT][FONT=&quot]
Information breaches of these Regulations:[/FONT][FONT=&quot]
[/FONT][FONT=&quot]There has been a clear failure to serve by durable medium, ANY information as defined in these Regulations for Distance Contracts (i.e. not face-to-face) as set out in Article 13:
Information to be provided before making a distance contract
''13.—(1) Before the consumer is bound by a distance contract, the trader — (a) must give or make available to the consumer the information listed in Sch. 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used, and
(b) if a right to cancel exists, must give or make available to the consumer a cancellation form as set out in part B of Schedule 3.[/FONT][FONT=&quot]
[/FONT][FONT=&quot](2) In so far as the information is provided on a durable medium, it must be legible.
(3) The information referred to in paragraphs (l), (m) and (n) of Schedule 2 may be provided by means of the model instructions on cancellation set out in part A of Sch.3;
(4) Where a distance contract is concluded through a means of distance communication which allows limited space or time to display the information— (a) the information listed in paragraphs (a), (b), (f), (g), (h), (l) and (s) of Schedule 2 must be provided on that means of communication in accordance with paragraphs (1) and (2), but (b) the other information required by paragraph (1) may be provided in another appropriate way.
(5) If the trader has not complied with paragraph (1) in respect of paragraph (g), (h) or (m) of Schedule 2, the consumer is not to bear the charges or costs referred to in those paragraphs.
(6) Any information that the trader gives the consumer as required by this regulation is to be treated as included as a term of the contract.
(7) A change to any of that information, made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.''[/FONT][FONT=&quot]

[/FONT][FONT=&quot]“distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded'' (EU definition).[/FONT][FONT=&quot]

[/FONT][FONT=&quot]Everything has been omitted, including no information given about the right to withdraw (there is no exemption from this even for distance contracts with limited space or time).[/FONT][FONT=&quot]
[/FONT][FONT=&quot]
[/FONT][FONT=&quot]
[/FONT][FONT=&quot]7) No authority or standing to form contracts with drivers[/FONT][FONT=&quot]
I believe there is no contract which entitles this Operator in their own right, to pursue these charges and to form contracts with drivers (being allowed to 'issue PCNs' is not the same thing as forming contracts with drivers). This Operator [/FONT][FONT=&quot]appears to be just a debt collector, an agent acting on behalf of another principal and merely sending out paperwork. Any fee charged or remedy for breach/trespass is a matter for the landowner to pursue.[/FONT][FONT=&quot]

[/FONT][FONT=&quot]I put the Operator to strict proof by showing a copy of the contemporaneous and unredacted contract with the landowner (not a third party site agreement with a managing agent who is not the landowner). This Operator is merely an agent with negative responsibility.[/FONT][FONT=&quot]
[/FONT][FONT=&quot]

[/FONT][FONT=&quot]8) No genuine pre-estimate of loss[/FONT][FONT=&quot]
There was no loss caused by this incident. In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, there is the classic statement, in the speech of Lord Dunedin, 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”.[/FONT][FONT=&quot]
[/FONT][FONT=&quot]
The Operator's typical GPEOL statement includes duplicated layers of checks to ensure the inflated 'staff costs' add up conveniently close to the amount of the PCN. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a typical parking event. [/FONT][FONT=&quot]An Operator cannot reasonably include in a GPEOL calculation, 'staff time spent on appeals' and other tax deductible business costs, 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.[/FONT][FONT=&quot]

[/FONT][FONT=&quot]Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') 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’’


In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation.[/FONT][FONT=&quot]
[/FONT][FONT=&quot]
If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely in the vast majority of cases.

Further, if the operator claims that there was a 'GPEOL' then they must prove it was not just a convenient summary of costs, written after the event. I put them to strict proof that a GPEOL was ever discussed and decided for this contravention at this site. This must include documentary evidence of a meeting with their client or emails or other evidence which shows how/when/why this PCN sum was decided in advance, specifically for this client in this car park. Showing that the GPEOL was discussed and set before the parking event is just as important as showing they have a contract in place before the parking event. In the 2014 POPLA Annual Report prepared by the Lead Adjudicator, Mr Greenslade, he 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."[/FONT][FONT=&quot]


[/FONT][FONT=&quot]9) Breach of DVLA KADOE contract. No audit trail and no reasonable cause.[/FONT][FONT=&quot]
[/FONT][FONT=&quot]Operators are only authorised under their KADOE contract with the DVLA to request keeper’s data if one of the following has arisen:[/FONT][FONT=&quot]

[/FONT][FONT=&quot]- where a PCN on a windscreen has already been issued, in the case of a manned car park.[/FONT][FONT=&quot]
[/FONT][FONT=&quot]OR[/FONT][FONT=&quot]
[/FONT][FONT=&quot]- where the issue of a PCN by post is planned (without a windscreen PCN) - this being allowed only in the case of an ANPR camera car park.[/FONT][FONT=&quot]
[/FONT][FONT=&quot]
This case was neither. It lacks the required audit trail the DVLA insist upon from all AOS members. DVLA Inspectors enforce the rule: 'all vehicles should be ticketed where ANPR technology is not utilised'. This is a fact in the public domain via FOI:

Driver and Vehicle Licensing Agency - November 2012
‘‘I have since my visit taken further instruction on this procedure. Please would you note that if an operator has the ability to take a photograph of the offending vehicle they should also place a ticket on the vehicle and allow the transgressor time to pay before data is requested from DVLA. I advise that all vehicles should be ticketed where ANPR technology is not utilised.
Summary of Issues: {Operator} to cease making vehicle keeper enquiries to DVLA where ANPR technology has not been used, and vehicles have not been ticketed. (Lack of Audit Trail) ’’

This was not a car park with ANPR cameras. An operative took manual photographs, alleging the case was a ‘drive away’. So it is a non-ANPR case for which there MUST be a Notice to Driver served first and 28 days allowed for the driver to appeal or pay. In fact, 28 days was not allowed, a hybrid Notice was posted early, as soon as the Operator got my data soon afterwards. There was no PCN served so this should never have progressed and it constitutes a DVLA and ICO rules breach - this matter is a common scam played out by this operator and it is the subject of several current complaints to the BPA. [/FONT][FONT=&quot]
[/FONT][FONT=&quot]
This makes a mockery of the DVLA KADOE contract, their ICO registration, the POFA, the BPA CoP and Consumer Protection regulations. I believe this is a case that should also be raised to the attention of the Lead Adjudicator for his next report and for POPLA to forward to the BPA as an example of continuing expressly disallowed procedures.[/FONT][FONT=&quot]
[/FONT][FONT=&quot]
Yours faithfully,
[/FONT][FONT=&quot]

[/FONT][FONT=&quot]Name of registered keeper[/FONT]

Coupon-mad

Looks good but what about adding the introduction we mentioned earlier and the designated spaces/signage point we discussed too.

P-man_2

I added these as point 3) and the start of point 4) - is this ok rather than placing it within the introduction?

P-man_2

@ Coupon-mad

I won the appeal and wanted to thank you for all your help:)

DoaM

Well done - please post your appeal result wording (and assessor's name) in the POPLA Decisions thread. (You can find the link to it in Crabman's sticky thread).

What did you win on - GPEoL?