UK Parking Patrol - Reply to POPLA Appeal

Sen-g-808

Hi

Ive followed the notes on the thread and received the email below in reply to my POPLA appeal, id appreciate any comments and suggestions for reply.

Seem to be a lot of inaccuracies if i understand the help notes.

Thanks!


The UK Parking Patrol Office
Dept 309,
Great Northern House,
275 Deansgate
Manchester
M3 4EL

Dear Sir/Madam,

Vehicle Registration: NV13KRN
PCN: 303337

We enforce the parking restrictions at: Roads surrounding Newcastle Airport, Woolsington, Newcastle upon Tyne, NE13 8BZ via CCTV footage that is taken by airport security. We have a signed contract with the landowner that enables us to go to the DVLA and request registered keeper details and then write to the keeper informing them they have incurred a notice. Parking/loading/unloading in any other area apart from the official car parks is prohibited and any vehicle caught preforming these acts is issued a notice by the CCTV operator.

The above vehicle was parked loading/unloading whilst parked on a clearly marked hatched area and in clear view of a warning sign stating: No Stopping/Loading/Unloading.

Please see the attached files:

1. The initial parking form issued by the CCTV operator clearly stating the reason for issue as “Dropping off/Picking up in a Restricted Area”.
2. The Notice to Owner that was initially sent on the 10th October 2014 but bears a later date due to being reprinted.
3. Appeal & rejection.
4. Formal Demand initially sent on the 7th November 2014 but also bears a later date due to being reprinted.
5. Vehicle parked loading/unloading on the hatched area and in clear view of a warning sign, see attached site photograph.
6. Site photographs showing the area is clearly signed
7. The wording of the warning signs.
8. Agreement with Landowner (client details erased for confidentiality reasons).

The airport are experiencing severe problems with drivers failing to drop off/pick up correctly due to the fact that they are choosing to avoid the official car parks and proceeding to drop off/pick up on the roadside.

The appellant has stated that they parked/stopped to collect a passenger after a difficult flight. They state to have paid to use the airports long stay car park and have included an email with their initial appeal detailing this yet this “invoice” does not bear any official Newcastle Airport logos. If the appellant did pay to park in the long stay area this does not automatically entitle them to avoid paying to collect passengers in the official drop off/collection areas (in this instance the Express Car Park) and park in a well signed: No Stopping/Loading/Unloading Zone.

The appellant has quoted that the POFA does not apply as there are bye-laws in place. He is correct in this but the notice was not issued under the POFA, please refer to the attached NTO and Formal Demand. We would not rely on the POFA for this case as the appellant has not disputed that they were the driver when the notice was incurred. The appellant paid to park at the site, therefore on the balance of probability the appellant is both the registered keeper and the driver. We pursue the driver, not the registered keeper, therefore the POFA is not applicable.

We hold a signed agreement with the landowner, see attached. Without such an agreement the DVLA would not release registered keeper details. Please be advised that any sensitive information i.e. clients personal contact details and commercially sensitive information have been removed to protect our clients confidentiality

The creditor is clearly named on all correspondence as being UK Parking Patrol. Our company logo appears on all letterheads and we are clearly named on the payment slip as being the creditor to whom the driver/keeper should make a payment to.

Please see the attached copies of the signage at the site that at 600x600mm is larger than the BPA states we must adhere to.

By parking at the site and not entering the official drop off/collection zone the driver avoided paying the £1 fee at the Express Car Park. Therefore the landowner suffered an initial loss.

The genuine pre-estimate of loss is detailed below:

What Parking Charge Notices Represent

The Parking Charge Notices (PCN’s) that we issue represent a claim for liquidated and ascertained damages in respect of a breach of the ‘parking contract’ which is deemed to have been offered by our signage at the location, and accepted by the motorist in that he opted to remain. The breach of the stated Terms & Conditions has been proved by other evidence elsewhere in this submission. When a motorist parks in breach of the Terms and Conditions of Parking, a loss is incurred by us as incorrect parking prevents the efficient management of the car park.

Burden of Proof

The complainant has not offered any evidence as to why the charge exceeded the appropriate amount; they have simply stated that in their opinion it does. We contend that that the burden of proof lies with the motorist to lay out their reasons with supporting evidence as to why the charge is not appropriate. That said we aim to set out our position in the remainder of this document as to why our charges can be determined as a genuine pre-estimate of the losses incurred by us due to the breach of the stated terms and conditions.

Initial loss incurred

In this particular case, the driver avoided paying the £1 fee to use the express car park by dropping off in a restricted area.

Subsequent losses incurred

• DVLA Fees / Processing Costs for this appeal £3.10
• Admin Expenses for this appeal: Stationery £1.10
• Postage £1.50
• Printing £1.20
• Attendant and admin staff wages and salaries including Employers National Insurance Attendants (PCN recording and issuing) for this case £3.20
• Appeals Staff 1 hour (call handling / appeals writing) for this case £8.75
• Management at 3 hours (quality control / evidence gathering
• POPLA replies) for this case £62.50
• Legal, Accounting and IT advice for this case £19.40
• Total Genuine Pre-estimation of Loss for this case. £100.75

Background Information:

There is a long and detailed process put in place to enforce parking T&Cs at a parking site, which if were not undertaken would lead to a loss of control of the car park, where vehicles park without consideration to others and/or block access routes etc., a loss of revenue where drivers did not or forgot to pay, or the failure to keep allocated bays (for example disabled parking bays) available for those in the most need of it. If the vehicles using our car parks extended their stay by just 10 minutes without paying the associated tariff we would lose revenue in access of £100,000 pa which would not be sustainable to us as a company or an acceptable loss to our clients.
Enforcement and the issue of PCNs is recognised as asset protection and as the principal or lease holder of the site it is incumbent on us and part of our contractual responsibility to manage the facility to the best of our ability in order to either generate the maximum amount of revenue possible for the land owner or lease holder or to keep our clients allocated parking clear of fly parkers and for the actual use of those who are entitled to park, be it an office allocated parking area, a retail park or a persons individual parking space or drive way.
As previously alluded there are a number of costs incurred in the continuous enforcement process that are a necessity in making sure drivers adhere to the parking T&Cs advertised and the chasing up of any outstanding and unpaid PCNs. These include but are not restricted to;

• Wages and Salaries including Employers NI Contributions - This is for the time it takes a cctv operator, having once identified a contravention, to initially record and make notes of the transgression. We estimate that on average an operator spends 15 minutes recording and documenting a PCN. The back office staff who manually check the issue of a PCN, examine and answer an appeal, take telephone questions or queries with regards to the issue of a PCN and take phone payments for the PCN, we estimate that it takes between 1 to 1.5 hours for the appeals staff to take these calls per appeal, examine an appeal (which are often multiple) and compile the response to that appeal. It includes the cost of managers to examine and quality control an appeal reply, the compiling of a POPLA evidence pack, the writing of an appeal reply and the submission of the same and the answering of any further evidence submissions. It is estimated that three hours of managers time (two hours senior managers, 1 hour director level) are taken to check and approve the response to each appeal and examine and compile the POPLA evidence pack for submission as well as write any detailed appeal replies such as those to an MP.

• Legal, Accounting and other Professional Advice - As from time to time we need to take advice and guidance from our appointed advisors to ensure an appeal is dealt with correctly.
• Print, Postage and Stationary costs – These are incurred for any responses to an appeal which often number in 2 and 3 replies and not just a single response.
• DVLA Fees / Processing Costs - These are fixed costs to us at present at £3.10 per DVLA search via our appointed debt recovery/notice processing company.

Therefore contrary to the assumption of many motorists financial losses to the company are directly incurred as soon as a contravention to the terms of parking as advertised is made and a PCN is issued. With regards to justifying the amount of the PCN the considerable costs of dealing with an individual appeal demonstrate that there is a large cost (and therefore loss) to us as a company and we are therefore justified in the amount of PCNs to cover these not inconsiderable costs.

 
PCN Amounts and the BPA Code of Practice

At present we are limited by the British Parking Associations Codes of Practice as to what the level of a PCN can be charged. We chose on a business case, mindful of the costs incurred above, to levy a PCN of £100 reduced to £60 if paid within 14 days. Often it is the case that we incur charges in excess of £100 but this additional cost has to be then subsidised from other parts of our business.
During October 2012 after significant pressure from Government and motoring/consumer organisations, the BPA reduced the maximum recommended charge for that a motorist should be expected to pay for a breach of the parking contract or for an act of trespass from £150 to 100. Despite the BPA being unable, due to prevailing legislation, to fix prices at this level, the actions of the Association were welcomed by all stakeholders. In this instance the charge being levied is within (well within) the recommendations set out within Clause 19.5 of the BPA Code of Practice.
This sum, and the calculations which have been made in setting it, has been approved and agreed by the landowner or his agent of the site.

Precedent in other cases

Parking Charges are fair and reasonable, and have been tested at the Court of Appeal. A charge of £75 was found by HHJ Hegarty QC in the case of Parking Eye v Somerfield Stores (2011) to be a reasonable charge, by which the motorist (when exceeding the specified time limit) would be contractually bound. See also Combined Parking Solutions v Dorrington (2012) and Combined Parking Solutions v Blackburn (2007). Further evidence, that parking charges cannot be viewed as penalties, can be found in Mayhook v National Car Parks and Fuller [2012], Combined Parking Solutions v Mr Stephen James Thomas [2008] and Combined Parking Solutions v De Brunner [2007]
In the POPLA evidence pack we have provided clear evidence that by staying at the location, the motorist has accepted all of the prevailing terms & conditions of the parking contract including the charges for not complying with the advertised terms and conditions. There are a large number of signs at the parking location, both at the entrance and throughout the site which offers the parking contract to the motorist, and sets out the terms and conditions of the parking area on which the operator will rely, and on which the motorist has agreed to be bound by which will become payable if the terms and conditions of parking are not met.

The Parking Contract

We would contend that it is too late now to indicate that they are unhappy with the parking charge – this should have been done at the time of accepting the ‘parking contract’ - if the motorist was unhappy with the contract terms, they should not have remained at the location. The amount of our charge has been calculated in advance and is clearly set out on the notices and signage. As such it is accepted on parking and the driver cannot claim that there are any Trading Standards or Consumer Regulation breaches as they have accepted the conditions at the point of opting to park at the location. On accepting the parking conditions we argue that the complainant cannot now seek to effectively renegotiate them or to dismiss them in their entirety. The charge of £100 reduced to £60 is as advertised and within BPA guidelines.

The POPLA ‘test case’

A genuine pre estimation of loss is just that, a genuine attempt to estimate the costs (and therefore loss) incurred for each PCN issued given the significant costs incurred conducting an appeals process.
The costs above for the parking charge, in this instance was established after consideration of the loss which we incur on the ticket issued and these headings above are as per Mr Henry Michael Greenslade’s, POPLA Adjudicator, ruling on 18 November 2013, Point 43, against Parking Eye Ltd as to what constitutes genuine pre-estimation of loss.

We have reviewed the ‘test case’ conclusions written by the Lead Adjudicator and quote from Mr Greenslade’s determination of what constitutes a genuine pre-estimation of loss:

“Each appeal will always turn of its own facts but both parties should be clear that a genuine pre-estimate of loss need not be a detailed estimate for each particular case. It is not the specific loss caused by the actual breach but may include loss incurred or loss that might reasonably be incurred.
However, it cannot include sums that are really the general business costs of the Operator’s car park services operation.”

“DVLA and associated fees for obtaining keeper details: clerical costs there arising, including stationery and postage; legal and other professional advice; wages and salaries involved in that (which may be relatively substantial), together with national insurance and similar related sums; the fee lost by another vehicle not being able to park in the occupied space (where there is a fee); and even loss of revenue at the retail outlet for which the parking is provided, do if established, fall within a genuine pre-estimation of loss. This list is not exhaustive but strongly indicative of the kind of items that could amount to such a genuine pre-estimate”.

Conclusion

We consider the amount on the PCN as a reasonable charge for liquidated damages in respect of a breach of the parking contract and contend that it is not a ‘penalty’ for a number of reasons.
We have calculated this sum as a genuine pre-estimate of our losses as we incur significant costs in dealing with an appeal to ensure compliance to the stated terms & conditions and to follow up on any breaches of these identified as detailed above.

Therefore we believe that the driver was in direct contravention to the parking restrictions in place and we believe the notice was correctly issued/incurred.

Kind regards




S Froggatt
UK Parking Patrol

Coupon-mad

I would email a rebuttal to POPLA - saying stuff like:


There have been no admissions as to who was driving and there is no keeper liability (I hope you didn't say 'I' paid to park at the site?). If you didn't give away who was driving then point out the fact that you are merely the keeper, and the operator has helpfully admitted their NTO is not compliant and byelaws apply so they cannot establish keeper liability.

In addition they contradict themselves:

''Initial loss incurred
In this particular case, the driver avoided paying the £1 fee to use the express car park by dropping off in a restricted area.''

and yet they also say:

''The appellant paid to park at the site, therefore...''


As regards the GPEOL statement, something like this rebuts that rubbish (I haven't written this from scratch, I copied it from another case):

UKPPO say the charge is for 'breach' yet they have not shown that there ever was a prior meeting with the Airport, to establish a 'genuine pre-estimate of loss' figure. In fact on the contrary, they plucked £100 out of the air because the BPA sets that ceiling and Operators think that means they can! UKPPO admit: 'We chose on a business case, mindful of the costs incurred above, to levy a PCN of £100 reduced to £60 if paid within 14 days.'

Staff costs not recoverable as a loss - not caused by the parking event.
As a registered keeper, I am not liable to pay the full hourly wages & NI contributions of UKPPO staff! These are tax-deductible costs of running a business, salaries which would be paid anyway. These full staffing costs cannot possibly directly flow from one alleged breach for a case which (unusually) happens to have now followed the POPLA route. Further, their salary includes time for training and also holiday pay and other elements within the hourly rate which I cannot possibly be liable to pay. Clerical staff 'working' for any parking operator while they look for a proper job, are expected to handle appeals as part of their usual core activities, so they are not significantly diverted at all. They are positively engaged in their normal salaried work, as is the ANPR camera 'operator'. So, there is no loss of staff time, as was found in 'A Retailer v Ms B' (a case focussing on whether there was any reclaimable loss) where Judge Charles Harris QC 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 judgement, 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’’

Management at 3 hours (quality control / evidence gathering)
- UKPPO Managers do not spend '3 hours' on each POPLA case - any competent clerical staff member could put their 'evidence packs' together as they are in the main, generic. There are too many layers of checks by higher paid staff to meet the requirement to be 'genuine' as a pre-estimate. If a Manager does spend time checking the work of others then this falls within their normal activities as a Manager, in terms of quality control and Management checks. They are not diverted from their salaried job and so this is not claimable as a 'loss' any more than any other staff/NI costs would be.

POPLA replies) for this case £62.50
POPLA related 'work' cannot apply to each PCN anyway, as a 'genuine pre-estimate', because only approximately 1% of cases ever get to POPLA stage. The best that an Operator could factor in for POPLA work would be 1% of the time taken, which would be well under a pound.

Since the vast majority will never to go to POPLA, this situation is comparable to cases where Operators add 'debt collection' costs (in fact the debt collection route is far more likely than POPLA). As a matter of policy, POPLA Assessors routinely dismiss 'debt collection stage' heads of cost, on the basis that 'cases may never get to debt collection stage so this is not applicable/too remote'. The same applies to 'POPLA costs', as was found by Nadesh Karunairetnam in ref 4212674003 in November 2014:

'... the cost of bringing the case to POPLA is too remote - it would not be in the reasonable contemplation of the parties at the time the parking contract was formed between the motorist and the operator. Consequently, the revised pre-estimate, absent of the costs which cannot be taken into account, stands at substantially lower than the parking charge. Therefore, I must find that the operator has failed to produce sufficient evidence to demonstrate that the parking charge is a genuine pre-estimate of loss. '

If the driver had paid between day 14 and day 28 then the full cost of the PCN would have applied. How do UKPPO justify this charge issued to all drivers, if the calculation includes POPLA 'work and checks' which never actually occur in 99% of cases? These POPLA costs which are very rare, cannot have been in the reasonable contemplation of UKPPO at the time of issuing an average PCN.

Legal, Accounting and IT advice for this case £19.40
Don't be ridiculous UKPPO - and the words 'for this case' throughout, prove that this is no 'pre-estimate'!

Indeed, in the 2014 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."

This inflated charge is not enforceable according to the words of Mr Greenslade and it is trite law that a charge for breach cannot be punitive and can only put the claimant back in the position they would have been in if no breach had occurred (incidentally no breach is admitted anyway). There was no initial loss at all as the driver had paid to park on site, and even if POPLA believed there was £1 loss, the rest includes a made up 'legal/IT/Accounting' sum which isn't broken down and is a normal cost borne by any business, as well as 'POPLA time' (too remote) staff salaries, Quality Control by Managers, layers of checks which do not flow from a single incident.

bazster

You might also state that the "evidence" supplied to PoPLA is worthless and in breach of company law because it fails to identify any legal entity (limited company, partnership or sole trader), and for the same reason you have never been lawfully served with any notice or correspondence in this matter.

Sen-g-808

Thanks guys very much appreciated.

No i haven't admitted in anyway who the driver was, one of the notes i made for a reply is;

'i have not disputed nor has anything been confirmed regarding the driver of the vehicle, balance of probability proved nothing'

The contract document they attached has no indication that the document has been signed by an authorised signatory of the company, no company stamp nor seal of Newcastle Airport.

Why reply to POPLA if they claim the appeal is not 'applicable' and they wouldnt rely on POPLA?

bazster

You are confusing PoPLA (a kangaroo court with no statutory basis set up by the British Parking Association) with PoFA (The Protection of Freedoms Act 2012), a statute.