Popla Appeal Help Care Parking

Chellbell

Thanks to this forum I am appealing my parking ticket for Non patron at the Range in St.Helens. I waited for the NTK to arrive then appealed as keeper which was rejected. The rejection letter I received from Care Parking was utter nonsense as they said they rejected my appeal as I parked outside of tram hours ?? We don't have trams in St.Helens !!
I have spent many hours looking through the threads and I would be very grateful if someone could look at my popla appeal for me and advise if it looks ok ? Also should I mention in the appeal the tram hours issue ?
Many thanks in advance for any help you can give me to help win my appeal.


Dear POPLA,
I am the registered keeper of ?????? and I wish to appeal the decision reached by Care Parking on PCN??????
1) The Charge is not a genuine pre-estimate of loss
2) Lack of standing/authority from landowner
3) Unreasonable/Unfair Terms
4) Witness Evidence on which they base their allegation


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

In their rejection letter, Care Parking appear to be asserting that their charge is a contractually agreed sum, I refute this entirely.

If this charge was a contractually agreed fee the sign would been worded to offer various durations of parking at various costs to non-customers and a payment mechanism would have been provided on-site. In addition a VAT invoice would have been provided. I have no evidence that this business operation on this car park has been registered for business rates and a VAT invoice has not been supplied.

This is a free customer only car park, there is no mechanism for non-customers to pay for parking and in fact parking other than by customers is specifically disallowed. Clearly permission to park ‘in breach’ can not be granted, and so I contend the parking charge cannot be a contractual price but is in fact a sum sought as damages for breach.

Their sign clearly states the charge is for 'Failure to comply" with the parking conditions i.e. breach of terms, so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park was not even half full, so even if the driver of the vehicle left the site (which is denied as I am the keeper and it is up to Care Parking to show as much) there was no loss of potential income in a free car park.

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach 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. Heads of cost 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.

2) 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). 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 lawfully showing that Care Parking are entitled to pursue these charges in their own right.

I require Care Parking to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice 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 Code of Practice, 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.


3) 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 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, 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.

4) Witness Evidence on which they base their allegation

I refute entirely the operator's allegation that a member of their staff observed the driver of the vehicle leaving the car park and I ask that the assessor puts them to strict proof as to:

a. The adequacy and contemporaneous nature of the notes that member of staff intends to rely upon.
b. The distance the observations were made over, a description of the lighting conditions and details of how crowded or otherwise the area was and a detailed description of the driver.
c. Details of any aid to vision the staff member used (binoculars etc) and what authorisation they had for their use within the terms of the Regulation of Investigatory Powers Act together with details of the reviews of such authorisations from their instigation up to the point of the alleged observation.
d. Whether any notes were made as the result of direct observation or as a result of contemporaneous viewing of CCTV images and if the latter the assessor is asked to require production of those images.
e. Given the operator's requirement to, at all times, minimise their losses what steps the member of staff took at the time to minimise those losses.

This concludes my appeal and I respectfully request that my appeal is upheld and the charge is dismissed.

Yours Faithfully,

Umkomaas

Have just skim read this only - sorry but my brain is 'mush' after ploughing through endless POPLA drafts for months on end.

You need a signage point as a separate appeal section. You definitely have to raise the fact that they are chasing you for a charge relating to a location which just does not exist in St Helens. False claim!

You also need to raise a complaint with the BPA and the DVLA (email addies in the NEWBIES FAQ sticky, post #6) that the PPC has no reasonable cause to acquire your details as there is no such location/tram facilities in St Helens and ask they investigate and award sanction points against them. Again, false claim.

HTH

Coupon-mad

Agreed, needs an 'unclear signage' paragraph, as per ALL examples (it is never missed out of our POPLA examples - OF COURSE there are always signs up, that's the point!). I would replace point 3 with the unclear signage paragraph instead. See other POPLA examples.

Also put this in the beginning so POPLA can see it:

The rejection letter I received from Care Parking was utter nonsense as they said they rejected my appeal as I parked outside of tram hours ?? We don't have trams in St.Helens !! This proves they have not properly considered the appeal points I made at all and have merely sent a generic rejection letter and left in the details from another case.

Chellbell

Thanks so much for your replies.
Regarding the signage I did look at this but as it was morning when the alleged parking took place, I didn't know if mentioning unlit signs would be relevant to my case ? Shall I still put the signage paragraph in but take out anything regarding unlit/darkness ?

I am on my way to work now but will post an updated appeal later detailing the points you have made above.

Thanks again

Umkomaas

Yes, definitely include the 'signage' appeal point, but as you rightly say, if it was a daytime parking event, adjust an example 'signage' paragraph to remove anything about evening/night/darkness/unlit etc.

Coupon-mad

You would be saying the signs were obscured by bushes (if true) or round the corner/placed on a side wall a driver would not have seen (if true) or high up and unreadable (if true) and not startling, as an onerous terms such as a large extra charge must be. And you could argue the wording appears to be ambiguous/or that the actual PCN charge sum itself is in tiny font, smaller than the other wording so not explicit and not set out clearly (often the case).

Chellbell

Thanks for all your advice - I think I now have my final draft to send to POPLA. I would be grateful if you could just have a quick look to check it over before I submit it.




Dear POPLA,



I am the registered keeper of XXXXXX and I wish to appeal the decision reached by Care Parking on PCN XXXXXX. The rejection letter I received from Care Parking was utter nonsense as they said they rejected my appeal as I parked outside of tram hours ?? We don't have trams in St.Helens. This proves they have not properly considered the appeal points I made at all and have merely sent a generic rejection letter and left in the details from another case. I also wish to appeal on the following grounds:



1) The Charge is not a genuine pre-estimate of loss
2) Lack of standing/authority from landowner
3) Unclear Signage – No contract with driver
4) Witness Evidence on which they base their allegation

1) The Charge is not a genuine pre-estimate of loss
In their rejection letter, Care Parking appear to be asserting that their charge is a contractually agreed sum, I refute this entirely.
If this charge was a contractually agreed fee the sign would been worded to offer various durations of parking at various costs to non-customers and a payment mechanism would have been provided on-site. In addition a VAT invoice would have been provided. I have no evidence that this business operation on this car park has been registered for business rates and a VAT invoice has not been supplied.
This is a free customer only car park, there is no mechanism for non-customers to pay for parking and in fact parking other than by customers is specifically disallowed. Clearly permission to park ‘in breach’ cannot be granted, and so I contend the parking charge cannot be a contractual price but is in fact a sum sought as damages for breach.

Their sign clearly states the charge is for 'Failure to comply" with the parking conditions i.e. breach of terms, so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park was not even half full, so even if the driver of the vehicle left the site (which is denied as I am the keeper and it is up to Care Parking to show as much) there was no loss of potential income in a free car park.

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach 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. Heads of cost 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.

2) 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). 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 lawfully showing that Care Parking are entitled to pursue these charges in their own right.

I require Care Parking to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice 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 Code of Practice, 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.

3) Unclear Signage - No contract with driver
Due to their high position and the barely legible size of the small print, the signs in this car park are very hard to read and understand. I contend that the signs and any core parking terms Care Parking are relying upon were too small for the driver to discern when driving in and that the signs around the car park cannot be read from the car when parking up. Also Care Parking state in their rejection letter that ‘A Parking Charge will be issued when: Parking Outside of tram service hours. This is most definitely not the case as St.Helens does not have trams. I request that POPLA should check the Operator's evidence and signage map/photos on this point. I contend that the signs in that car park (wording, position, and clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach.





4) Witness Evidence on which they base their allegation
I refute entirely the operator's allegation that a member of their staff observed the driver of the vehicle leaving the car park and I ask that the assessor puts them to strict proof as to:
a. The adequacy and contemporaneous nature of the notes that member of staff intends to rely upon.
b. The distance the observations were made over, a description of the lighting conditions and details of how crowded or otherwise the area was and a detailed description of the driver.
c. Details of any aid to vision the staff member used (binoculars etc) and what authorisation they had for their use within the terms of the Regulation of Investigatory Powers Act together with details of the reviews of such authorisations from their instigation up to the point of the alleged observation.
d. Whether any notes were made as the result of direct observation or as a result of contemporaneous viewing of CCTV images and if the latter the assessor is asked to require production of those images.
e. Given the operator's requirement to, at all times, minimise their losses what steps the member of staff took at the time to minimise those losses.

This concludes my appeal and I respectfully request that my appeal is upheld and the charge is dismissed.

Yours Faithfully,

Coupon-mad

Almost done - except for you have not added a point about the Notice to keeper not being compliant (that's the whole point of waiting for the NTK, to tear it shreds!). Look at any POPLA example about a windscreen PCN, where it mentions para 8 of the POFA (NOT para 9 which relates to ANPR camera ones).

I spotted this which needs to read 'according to them, the driver parked' instead:

they rejected my appeal as I parked outside of tram hours ??