POPLA Appeal Letter Advice - Parked at a boarded pub

Layna

Hello all - Happy New Year!

Timeline so far: Got a PCN in Nov 2014. Sent appeal to JD Parking Consultants and get a rejection, so now have to appeal to POPLA before 22nd Jan.

There main points for rejecting my appeal were:

• The site in question is subject to terms and conditions, which are stated on signs throughout the area. As these terms were breached on the date in question (no valid permit/authorisation), a PCN was correctly and legitimately issued.

• I attach photographic evidence taken at the time of the parking contravention. You will note the clear signage next to the vehicle.

I parked my car at 'The Hobby Horse' (a boarded up pub in Leeds). It's been unoccupied for at least a year or so; I've had a Google and can't find any details anywhere of the landowner. There are notices around the car park - one that states "Car Parking for Patrons Only. Clamping in Operation. £75 release fee. See Landlord for Permit." and the standard JD Parking notices stating that it was private parking. The only reason I parked there was because I assumed the signs were from when the pub was open and no longer applied.

Could I use this as part of my appeal? They have a photo of the car parked in front of the Private Parking sign so I can't really use the "unclear signage" tactic. I will use the "no genuine pre-estimate of loss" argument (how can they charge me £100 for a free, out-of-use car park? It's not like the pub is losing a spot for a customer!)

Is there any other arguments I could use? Having looked through recent POPLA decisions it appears that the more specific arguments you have the better chances you have of winning your appeal, so any help or advice would be very much appreciated!

Redx

read the NEWBIES sticky thread, it has a section to popla appeal examples, find and choose the closest match and adapt it

do not remove sections like signage, you have no idea if their signs comply with the BPA CoP (clearly they dont) , so include it all and let a popla assessor decide

so not a gpeol , no contract, poor or incorrect signage, etc

even if its a boarded up pub, its still private property so you are still subject to any laws such as trespassing , ie:- you cannot just park anywhere you like just because the property is empty

but you should still appeal it and use the legal arguments that are in your favour , so include all of them

BenefitMaster

But the fact that Clamping signs are still up is a criminal offence committed by the company with control of that land, which would appear, prima facia, to be the parking company.

So a complaint to BPA and the DVLA is in order, as well as potentially a criminal allegation to the local police.

bazster

Well well well, whaddya know? Yet another criminal who is helping the Bullsh|t Purveyors Association to Drive Up Standards:

http://www.sia.homeoffice.gov.uk/Pages/about-news.aspx?newsid=455

You've nothing to fear from this bunch of pub bouncers and ex-clampers. Just read the Newbies thread, grab a template, fine-tune it and proof-read it, and whack it into PoPLA. Not a GPEOL will win it for you.

The_Deep

http://www.yorkshireeveningpost.co.uk/news/latest-news/top-stories/leeds-law-student-beats-clampers-1-3086369

They say they win all their cases in court. Are they telling the truth?

BenefitMaster

The_Deep wrote: »

They say they win all their cases in court. Are they telling the truth?

How can you tell a PPC employee is lying?

He's saying something.

:rotfl:

The_Slithy_Tove

Layna wrote: »

There are notices around the car park - one that states "Car Parking for Patrons Only.

Then it's clear from the signs that there is no offer to you to park at all. Therefore there can be no "contract" from anyone. It's a case of trespass, pure and simple, and only the landowner can pursue such a claim.

How about challenging the notice on those terms? Tell them that it's clearly an alleged trespass, and they had better refer the matter to the landowner, as that is the only person who can claim any kind of damages.

Coupon-mad

If this was a case of 'no permit' then search this forum for the word 'analogous' to find a fairly recent POPLA appeal I wrote for someone, which is about 'no permit' and quotes from POPLA Senior Assessor Chris Adamson with the fact that permits are not analogous with P&D tickets and so there is no initial loss...etc. You can adapt that version to suit your case. I assume you appealed too early by our standards, didn't wait for the first letter and you gave away who was driving as well? Doesn't help but you should still win on 'no GPEOL' as per the sticky threads.

Marktheshark

The issue of land ownership is one if they try court.
I have heard on the grapevine they blank over signs on concert nights as well, something been local I shall be investigating.

Layna

Coupon-mad wrote: »

If this was a case of 'no permit' then search this forum for the word 'analogous' to find a fairly recent POPLA appeal I wrote for someone, which is about 'no permit' and quotes from POPLA Senior Assessor Chris Adamson with the fact that permits are not analogous with P&D tickets and so there is no initial loss...etc. You can adapt that version to suit your case. I assume you appealed too early by our standards, didn't wait for the first letter and you gave away who was driving as well? Doesn't help but you should still win on 'no GPEOL' as per the sticky threads.

I sent my appeal to JD Parking 22 days after the ticket (since numerous people on here and the Newbies Sticky said that JD never send the NtK so don't bother waiting for it, but wait until day 22) and used the template in the Sticky, i.e. I have not told them who was driving the car.

Thanks for the heads up about that POPLA example, I have a tinker with it over the next few days and put my draft on here if you guys don't mind proof reading it for me?

Layna

Ok, here's on first draft... what do you think? The bit in red I'm not sure whether to keep in or not. It's a good point, but I don't know if it's relevant to my case...


[FONT=&quot]RE: POPLA CODE- [/FONT][FONT=&quot]XXXXXXXXX

Parking Charge Number (PCN): XXXXXXXX
Vehicle Reg: XXXX XXX
Operator: JD Parking Consultants

I am the registered keeper of the vehicle that was issued a PCN for parking without a valid permit. I challenged this notice on a number of issues. I then received a rejection with regards to the alleged contravention. I would like to appeal this notice on the following grounds.

1. Not a genuine contractual fee nor genuine pre-estimate of loss
2. No landowner contract assigning rights to JD Parking Consultants to enforce contracts with drivers
3. No contract formed by the signage

1. Not a genuine contractual fee nor genuine pre-estimate of loss
This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged 'breach’ of ‘terms and conditions' 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.

In any case, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from a parking event. I require the Operator to provide a detailed breakdown of their loss and on what basis this can be their loss at all. 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. The Office of Fair Trading has stated to the BPA Ltd that:[/FONT]

[FONT=&quot]A parking charge is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.[/FONT]

[FONT=&quot]At no point have JD Parking Consultants explained what loss they have accrued nor justified the £100 charge.

***In this case no loss exists so there is no initial sum to pursue, and they certainly cannot include 'staff time spent on appeals' and other tax deductible business costs such as 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. The same is true of the parking attendant who is already paid to visit sites and take photos & issue PCNs, and is not significantly diverted from this activity when a car is considered to be parked in breach.

Judge Charles Harris QC in 'A Retailer v Ms B' stated:[/FONT]
[FONT=&quot]
[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.***

[/FONT]
[FONT=&quot]POPLA Senior Assessor Chris Adamson stated on 3rd December 2014 in POPLA decision Reference 6862654003 which is relevant as it is a permit case:

[/FONT]
[FONT=&quot]Permits are not analogous with pay and display tickets, which are bought for an individual stay and represent proof of purchase. [...]The Operator has provided no other evidence of any initial loss.[/FONT]

[FONT=&quot]The same Assessor has also summed up many decisions thus:

[/FONT]
[FONT=&quot]The aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.

[/FONT]
[FONT=&quot]2. No contract assigning rights to the Operator to enforce charges in the courts contracts or form their own contracts with drivers[/FONT][FONT=&quot]
The parking notice states that it has been served on behalf of the landowner. I assert that the Operator does not have the legal status or assigned right to pursue parking charge notices in the courts, or to make contracts with drivers. I therefore require the Operator to supply:

[/FONT]
[FONT=&quot]• A copy of the current contract with the landowner (and if their contract is merely with another agent, then I put JD Parking Consultants to strict proof of their rights to form contracts having been authorised from the landowner).[/FONT]
[FONT=&quot]• A copy of the wording of the current permit scheme and a document detailing how ‘patrons’ of The Hobby Horse could obtain a permit.

Furthermore, I require that the Operator demonstrate that they have the right to pursue parking charge notices in the courts and to specifically make contracts with drivers in their own right, rather than this remaining the gift of this landowner. I am not merely asking for proof that this Operator can 'issue PCNs' of course. Anyone can issue a PCN on a windscreen - a caretaker or cleaner could do that but it would not automatically confer them any locus standi to demand sums of money for alleged breach. Hence, I need to see the contract itself, not a witness statement, not a site agreement sheet.


3. No contract formed by the signage
I submit that this signage failed to comply with the BPA Code of Practice section 18 and Appendix B:[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]Signs should be readable and understandable at all times, including during the hours of darkness [...] when parking enforcement activity takes place at those times. This can be achieved [...] by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit [...] should be made of a retro-reflective material similar to that used on public roads.[/FONT]

[FONT=&quot]The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. There is no entrance sign. The sign within the car park is placed high up and is unlit, so that in darkness no signs are visible and the words are unreadable. I put UKCPS to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. There is no entrance sign, no lighting on site and the sign is not prominent, not reflective and placed too high to be lit by headlights. A Notice is not imported into the contract unless brought home so prominently that the party must have known of it and agreed terms. There was no consideration/acceptance and no contract agreed between the parties.

[/FONT]
[FONT=&quot]An additional point should be made about one sign on the premises that states: [/FONT]

[FONT=&quot]Car Parking for Patrons Only
Clamping in Operation
£75 release fee
See Landlord for Permit[/FONT]

[FONT=&quot]The fact that there is a Clamping sign still up is a criminal offence committed by the party with control of that land, i.e. the landowner.[/FONT]
[FONT=&quot]
With all this in mind, I require POPLA to inform the Operator to cancel the PCN.

Yours faithfully,

The Keeper[/FONT]