Park Direct Uk, Uxbridge

TFitness246

Hi, I was wondering if anyone can help.

I've been combining through previous threads regarding this parking spot since, getting issued with this parking charge.

i wrote this appeal to Park Direct and naturally they rejected it, so I wondering would I need to change it for POPLA?

As registered keeper, I wish to appeal because I am not liable for the parking charge and the car was not improperly parked. The background is that there was no windscreen ticket applied, at all.

I received the Parking Charge Notice through the post along with the Notice to Keeper, which states that "stopping or waiting where stopping or restrictions are in force at a location which had the terms of parking clearly displayed on the warning signs” the alleged contravention was recorded at the above car park on 2911/14.

I have the following appeal points:
1. There was no ‘PCN issued’ on the car
2. The Charge is not a genuine pre-estimate of loss
3. Lack of sufficient contractual authority
4. Signage incapable of being read in the dark - no contract with driver
5. Grace period insufficient despite BPA CoP
6. Unfair terms - Unenforceable Disguised Penalty


1. There was no ‘PCN issued’ on the car in November so the NTK is factually wrong. The misinformation that there had been a PCN issued when in fact it arrived with the NTK and was never served to the driver at all, 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 document was ambiguous, unfair and has unjustified.


2. The charge is not a genuine pre-estimate of loss

The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have potentially been suffered by the Landowner. This PCN is really about breach of contract, so loss must be shown or the charge is unenforceable. The Notice to Keeper letter refers to 'breach of contract' so the charge must be a genuine pre-estimate of loss - and I contend this charge certainly is not based on any such calculation.

Park Direct 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 (as listed above) and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this event.

Park Direct 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. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator.

3. Lack of sufficient contractual authority

Park Direct have no standing as they are an agent, not the landowner. They also have no BPA-compliant landowner contract containing wording specifically assigning them any rights to form contracts with drivers in their own name, nor to pursue these charges in their own name in the Courts.

Even if a basic site agreement is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between Park Direct and their client, containing nothing that could impact on a third party customer. Also the contract must be with the landowner - not another agent - and must comply with paragraph 7 of the BPA CoP and show that this contravention can result in this charge at this car park and that Park Direct can form contracts with drivers in their own right. The whole contract is required to be produced, in order to ensure whether it is with the actual landowner, whether money changes hands which must be factored into the sum charged.


4. Signage incapable of being read in the dark - no contract with driver

The sign at the entrance to the car park is multi-coloured, non-reflective, unlit and on the floor of the car park as highlighted in the pictures issued to the keeper of the vehicle as evidence by Park Direct. The sign was not seen by the driver and would have been invisible in the dark. At 8.22pm, the car park is extremely dark, as is shown from Park Direct's own evidence photo, and the sign was placed on the ground making the sign only visible if the driver was specifically seeking out the sign at pavement level.

The BPA CoP at Appendix B sets out strict requirements for entrance signage, including “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead” and “There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision. 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...''

5. Grace period insufficient despite BPA CoP

The BPA code of practice states that: “You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”

The driver of the vehicle was in the car park according to the evidence provided by Park Directs first Parking Charge Notice for a total of 15 seconds; this does not even allow a reasonable grace period of 60 seconds for the driver to notice a sign while driving and then leave the premises.

6. Unfair terms - Unenforceable Disguised Penalty

The sign & the NTK are unclear, ambiguous & contradictory. On the NTK the sum is extremely hard to find, hidden in small print on the back. It is stated as a 'contravention' for 'breaching the terms’. Yet the sign misleadingly alleges a 'contractual' sum. If so, there would be a time-limited stay, a payment mechanism and a VAT invoice. There is none. This is a disguised penalty. Terms must be clear otherwise the interpretation that favours the consumer applies.

Umkomaas

You seem to have all the main points covered, I don't proof read these any more, it's something you need to do to ensure the appeal reflects your circumstances relating to the parking event. Just as an example does the following accurately describe the signage, given that you were only there for 15 seconds - or have you been back to check the signage?

Yet the sign misleadingly alleges a 'contractual' sum.

Did the PPC send you photos of your car? Were they from pole mounted ANPR cameras focused on your number plate, or via a hand held camera/smartphone, and if so did it show a PCN ticket attached to your windscreen?

TFitness246

They were handheld camera/handheld photos which do not show any PCN ticket on my windscreen. They sent back photos totally up to being there for 90 secs.

Coupon-mad

TFitness246 wrote: »

They were handheld camera/handheld photos which do not show any PCN ticket on my windscreen. They sent back photos totally up to being there for 90 secs.

There's a recent version of a drive-away POPLA appeal in the NEWBIES thread post #3 already written. You have missed out the point about the KADOE contract with the DVLA not enabling a PPC to issue a postal PCN without ANPR cameras and in fact they have obtained the data without reasonable cause. All of which is in the drive-away version of a POPLA appeal already written in the examples linked in 'How to win at POPLA' in the newbies thread.

This isn't true of ParkDirect, they don't do this, they just send a 'postal Notice' not both:

''I received the Parking Charge Notice through the post along with the Notice to Keeper''

It would be a shame to appeal re a drive-away PCN and not point out to POPLA the fact it isn't allowed. It looks to me as if you've seen the template I mention but possibly cut off appeal point 9 about KADOE/DVLA rules? Or you've used the VCS version (where they sent a hand-written PCN and NTK together in the same envelope) and not the Park Direct version (where they don't)? Something's not quite right yet about that draft - it's getting there but look again at the Park Direct version which I wrote and linked in the NEWBIES thread 'How to win at POPLA' linky not very long ago. It's even written for this Uxbridge site.

TFitness246

Okay, i've added those 2 extra points. Thanks a lot, much appreciated!!

TFitness246

Just received the decision by POPLA today. The charge got cancelled. Another victory, thank for all the help!!

Umkomaas

Well done. Would you mind posting up a transcript of the decision (including Assessor's name) in the POPLA Decisions sticky? Would be interested to know on what ground(s) the appeal was upheld.

Dublindel

Where a term is ambiguous, the term can be interpreted on the drivers favour. Therefore where a grace period is open to definition with no time period, the driver can make their own evaluation of the time allowed.

TFitness246

There was no transcript included.

It was Richard Reeve who was assessor

bluetoffee1878

I think Umkomaas is refering to what the letter from POPLA says, which specific appeal point was upheld