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NCP PCN Popla appeal advice
saund
Posts: 8 Forumite
Hi All,
I’m hoping that somebodywill be able to help me with a Popla appeal. I have recently received a PCNfrom NCP to which my initial appeal was rejected.
This is the second PCNthat have received, althogh the firstwas successfully appealed at the first stage. Having read the Newbies thread regardingPopla appeals and several other website, this seems the place to come for someadvice!
The contravention stated onthe PCN is “Not parked correctly within the markings of a bay space”.
I will upload a couple ofphotos of my car parked and the PCN following this.
After reading the variousnewbie threads etc, this is my first draft of my Popla appeal and I would begrateful for anybody that takes the time to review it and let me know yourthoughts and comments on how to improve it:
POPLA Reference Number: ########
As the registered keeper of the vehicle ###### I wish to appeal a recentparking charge issued by National Car Parks Ltd. I submit the points below toshow that I am not liable for the parking charge:
1) The charge does not represent a genuine pre-estimate of loss
2) No standing or authority to pursue charges nor form contracts with drivers
3) No visual evidence of the alleged contravention provided
4) Unreasonable / unfair terms
5) The signage was not in accordance with the BPA code of practiceand was not sufficiently prominent to form a contract
6) Inadequate and incomplete road/line markings
7) No actual loss was made
1) The charge does not represent a genuine pre-estimate of loss
The charge of £75 levied for ‘not parking correctly within themarkings of a bay space’ is punitive and unreasonable, contravening the BritishParking Association’s Code of Practice section 19.
The BPA Code of Practice clause 19.5 states:
“If the parking charge that the driver is being asked to pay is for a breachof contract or act of trespass, this charge must be based on the genuinepre-estimate of loss that you suffer.“
This is followed by clause 19.6 which states:
“If your parking charge is based upon a contractually agreed sum, thatcharge cannot be punitive or unreasonable.“
The BPA Code of Practice requires that if a parking charge is for an allegedbreach of contract then it must prove to be a genuine pre-estimate of lossflowing from the incident. This cannot be a subsequently devised statement asthis would not be a pre-estimate. The Appellant requests that National CarParks Ltd (NCP) provides a detailed breakdown of how the amount of the chargewas calculated in the form of documented, specific evidence applicable to thiscar park and this alleged incident. According to previous POPLA adjudicationsand Court rulings, running costs, such as erecting signage, wages, uniform andoffice costs may not be included in the calculations as they would haveoccurred whether a breach occurred or not.
Given that NCP apparently charge the same lump sum for parkingoutside the marked lines of a bay as they would an overstay of 30 minutes or 5hours, and the same fixed charge applies to any alleged contravention (whetherserious and damaging or trifling), it is clear there has been no regard paid toestablishing that this charge is a genuine pre-estimate of loss caused by thisalleged breach of contract by NCP.
2) No standing or authority to pursue charges nor form contracts withdrivers
The BPA Code of Practice states at 7.1 that:
“If you do not own the land on which you are carrying out parkingmanagement, you must have the written authorisation of the landowner (or theirappointed agent) before you can start operating on the land in question. Theauthorisation must give you the authority to carry out all the aspects of themanagement and enforcement of the site that you are responsible for. Inparticular, it must say that the landowner requires you to keep to the Code ofPractice, and that you have the authority to pursue outstanding parkingcharges, through the courts if necessary.”
It is the Appellants claim that NCP (the Operator) has no legal status toenforce this charge because there is no assignment of rights to pursue penaltycharge notices in their name in court nor standing to form contracts withdrivers. The Operator does not own this car park and appear (at best) to have abare licence to put signs up and ticket vehicles on site, merely acting asagents for the Train Operator. In order to refute the claim and to comply withthe above paragraph the Appellant requires that the Operator provides a fullcopy of the contemporaneous, signed, dated and most importantly un-redactedcontract with the landowner. The Operator has noproprietary interest in the land, so they have no standing to make contractswith drivers in their own right, nor to pursue charges for breach in their ownname. In the absence of such title, NCP must demonstrate assignment of rightsfrom the landowner to pursue charges for breach in their own right, includingat court level. Evidence has not been produced by the Operator in theirrejection statement so the Appellant has no proof that such an arrangement isin existence. A commercial site agent for the true landholder has neitherautomatic standing nor authority in their own right which would meet the strictrequirements of section 7 of the BPA Code of Practice.
The Appellant therefore puts NCP to strict proof to provide POPLA and myselfwith an unredacted, contemporaneous copy of the contract between NCP and thelandowner. This is required so that POPLA and the Appellant can check that itallows this Operator to make contracts with drivers themselves and providesthem with full authority to pursue charges, including a right to pursue them incourt in their own name. Please note that a witness statement to the effectthat a contract is in place will not be sufficient to provide sufficient detailof the contract terms (such as revenue sharing, genuine intentions of theserestrictions and charges, set amounts to charge for each stated contravention,etc.).
3) No visual evidence of the alleged contravention provided
Beyond the assertion of the NCP parking attendant, no evidence hasbeen provided by NCP (i.e. a photograph of my vehicle parked incorrectly in asigned no parking area / straddling a bay marking into a second bay or the roadetc) to support the PCN which they have issued. In this case the onus surelyfalls to NCP to provide sufficient evidence to prove that the claimed breach oftheir terms and conditions took place. The Appellant contends that my vehiclewas in fact parked correctly and require photographic evidence clarifying howmy vehicle was allegedly parked incorrectly including a detailed description ofhow the terms and conditions were breached.
4) Unreasonable / unfair terms
The charge being claimed by the Operator is apunitive sum. According to the Office of Fair Trading ‘Guidance for the UnfairTerms in Consumer Contracts Regulations 1999’ it “is unfair to imposedisproportionate sanctions for breach of contract. A requirement to pay more incompensation for a breach than a reasonable pre-estimate of the loss caused tothe supplier is one kind of excessive penalty. Such a requirement will, in anycase, normally be void to the extent that it amounts to a penalty under Englishcommon law...''
It is wholly unreasonable to attempt to profit by charging a disproportionatesum where no loss has been caused by a driver who has paid and displayed aticket. The appellant requests strict proof that the charge does not cause asignificant imbalance to the Appellants detriment and to justify the Operatorscharge does not breach the UTCCRs and UCT Act.
5) The signage was not in accordance with the BPA code of practiceand was not sufficiently prominent to form a contract
Unclear signage breaches Appendix B of the BPA Code of Practice which statesthat contractual terms on entrance signs must be clearly readable without adriver having to turn away from the road ahead. A Notice is not imported intothe contract unless brought home so prominently that the party 'must' haveknown of it and agreed terms beforehand. In the absence of sufficientlyprominent and detailed signage, the driver could not have been made aware ofany charges applicable nor that a contract had even been proposed by NCP inrespect of the alleged event. There is no offer to park at the location bypayment of a charge, and there is no description of what the driver wouldreceive from such a contract. The Appellant submits that a valid contract wasnot offered; even if (non-compliant) signs were present, the driver was notoffered the opportunity to enter into a negotiation in order to influence thecontractual terms, nor given the opportunity to accept or reject any terms. TheAppellant submits that, if signs were present on the day of the alleged event,they were not prominent enough to form a valid contract. The Appellant submitsthat no detailed terms relating to this Operator's onerous, inflated penaltycharge were visible, and it is therefore apparent that the requirements forforming a contract (i.e. consideration flowing between the two parties, offer,acceptance and fairness and transparency of terms offered in good faith) werenot satisfied.
6) Inadequate and incomplete road/line markings
The Appellant contends that the bay was not correctly marked andonly marked on three sides as detailed in the attached photograph. TheAppellant therefore puts NCP to provide proof that the road markings of the bayin question are in accordance with their published standard markings and theterms and conditions of parking.
7) No actual loss was made by NCP
The correct fee had been paid for the Appellants vehicle to beparked on the date of the alleged contravention. Furthermore, the Appellantsvehicle was parked in the final bay at the end of a row of spaces and thereforewas adjacent to only one other bay only which was occupied by another vehicleas seen in the attached photograph. The appellant therefore contends that NCP made no initial loss due to the parking of the vehicle ###### on #### asalleged by NCP.
I would therefore ask the adjudicator to allow this appeal and theOperator to cancel the Charge.
Yours faithfully
I’m hoping that somebodywill be able to help me with a Popla appeal. I have recently received a PCNfrom NCP to which my initial appeal was rejected.
This is the second PCNthat have received, althogh the firstwas successfully appealed at the first stage. Having read the Newbies thread regardingPopla appeals and several other website, this seems the place to come for someadvice!
The contravention stated onthe PCN is “Not parked correctly within the markings of a bay space”.
I will upload a couple ofphotos of my car parked and the PCN following this.
After reading the variousnewbie threads etc, this is my first draft of my Popla appeal and I would begrateful for anybody that takes the time to review it and let me know yourthoughts and comments on how to improve it:
POPLA Reference Number: ########
As the registered keeper of the vehicle ###### I wish to appeal a recentparking charge issued by National Car Parks Ltd. I submit the points below toshow that I am not liable for the parking charge:
1) The charge does not represent a genuine pre-estimate of loss
2) No standing or authority to pursue charges nor form contracts with drivers
3) No visual evidence of the alleged contravention provided
4) Unreasonable / unfair terms
5) The signage was not in accordance with the BPA code of practiceand was not sufficiently prominent to form a contract
6) Inadequate and incomplete road/line markings
7) No actual loss was made
1) The charge does not represent a genuine pre-estimate of loss
The charge of £75 levied for ‘not parking correctly within themarkings of a bay space’ is punitive and unreasonable, contravening the BritishParking Association’s Code of Practice section 19.
The BPA Code of Practice clause 19.5 states:
“If the parking charge that the driver is being asked to pay is for a breachof contract or act of trespass, this charge must be based on the genuinepre-estimate of loss that you suffer.“
This is followed by clause 19.6 which states:
“If your parking charge is based upon a contractually agreed sum, thatcharge cannot be punitive or unreasonable.“
The BPA Code of Practice requires that if a parking charge is for an allegedbreach of contract then it must prove to be a genuine pre-estimate of lossflowing from the incident. This cannot be a subsequently devised statement asthis would not be a pre-estimate. The Appellant requests that National CarParks Ltd (NCP) provides a detailed breakdown of how the amount of the chargewas calculated in the form of documented, specific evidence applicable to thiscar park and this alleged incident. According to previous POPLA adjudicationsand Court rulings, running costs, such as erecting signage, wages, uniform andoffice costs may not be included in the calculations as they would haveoccurred whether a breach occurred or not.
Given that NCP apparently charge the same lump sum for parkingoutside the marked lines of a bay as they would an overstay of 30 minutes or 5hours, and the same fixed charge applies to any alleged contravention (whetherserious and damaging or trifling), it is clear there has been no regard paid toestablishing that this charge is a genuine pre-estimate of loss caused by thisalleged breach of contract by NCP.
2) No standing or authority to pursue charges nor form contracts withdrivers
The BPA Code of Practice states at 7.1 that:
“If you do not own the land on which you are carrying out parkingmanagement, you must have the written authorisation of the landowner (or theirappointed agent) before you can start operating on the land in question. Theauthorisation must give you the authority to carry out all the aspects of themanagement and enforcement of the site that you are responsible for. Inparticular, it must say that the landowner requires you to keep to the Code ofPractice, and that you have the authority to pursue outstanding parkingcharges, through the courts if necessary.”
It is the Appellants claim that NCP (the Operator) has no legal status toenforce this charge because there is no assignment of rights to pursue penaltycharge notices in their name in court nor standing to form contracts withdrivers. The Operator does not own this car park and appear (at best) to have abare licence to put signs up and ticket vehicles on site, merely acting asagents for the Train Operator. In order to refute the claim and to comply withthe above paragraph the Appellant requires that the Operator provides a fullcopy of the contemporaneous, signed, dated and most importantly un-redactedcontract with the landowner. The Operator has noproprietary interest in the land, so they have no standing to make contractswith drivers in their own right, nor to pursue charges for breach in their ownname. In the absence of such title, NCP must demonstrate assignment of rightsfrom the landowner to pursue charges for breach in their own right, includingat court level. Evidence has not been produced by the Operator in theirrejection statement so the Appellant has no proof that such an arrangement isin existence. A commercial site agent for the true landholder has neitherautomatic standing nor authority in their own right which would meet the strictrequirements of section 7 of the BPA Code of Practice.
The Appellant therefore puts NCP to strict proof to provide POPLA and myselfwith an unredacted, contemporaneous copy of the contract between NCP and thelandowner. This is required so that POPLA and the Appellant can check that itallows this Operator to make contracts with drivers themselves and providesthem with full authority to pursue charges, including a right to pursue them incourt in their own name. Please note that a witness statement to the effectthat a contract is in place will not be sufficient to provide sufficient detailof the contract terms (such as revenue sharing, genuine intentions of theserestrictions and charges, set amounts to charge for each stated contravention,etc.).
3) No visual evidence of the alleged contravention provided
Beyond the assertion of the NCP parking attendant, no evidence hasbeen provided by NCP (i.e. a photograph of my vehicle parked incorrectly in asigned no parking area / straddling a bay marking into a second bay or the roadetc) to support the PCN which they have issued. In this case the onus surelyfalls to NCP to provide sufficient evidence to prove that the claimed breach oftheir terms and conditions took place. The Appellant contends that my vehiclewas in fact parked correctly and require photographic evidence clarifying howmy vehicle was allegedly parked incorrectly including a detailed description ofhow the terms and conditions were breached.
4) Unreasonable / unfair terms
The charge being claimed by the Operator is apunitive sum. According to the Office of Fair Trading ‘Guidance for the UnfairTerms in Consumer Contracts Regulations 1999’ it “is unfair to imposedisproportionate sanctions for breach of contract. A requirement to pay more incompensation for a breach than a reasonable pre-estimate of the loss caused tothe supplier is one kind of excessive penalty. Such a requirement will, in anycase, normally be void to the extent that it amounts to a penalty under Englishcommon law...''
It is wholly unreasonable to attempt to profit by charging a disproportionatesum where no loss has been caused by a driver who has paid and displayed aticket. The appellant requests strict proof that the charge does not cause asignificant imbalance to the Appellants detriment and to justify the Operatorscharge does not breach the UTCCRs and UCT Act.
5) The signage was not in accordance with the BPA code of practiceand was not sufficiently prominent to form a contract
Unclear signage breaches Appendix B of the BPA Code of Practice which statesthat contractual terms on entrance signs must be clearly readable without adriver having to turn away from the road ahead. A Notice is not imported intothe contract unless brought home so prominently that the party 'must' haveknown of it and agreed terms beforehand. In the absence of sufficientlyprominent and detailed signage, the driver could not have been made aware ofany charges applicable nor that a contract had even been proposed by NCP inrespect of the alleged event. There is no offer to park at the location bypayment of a charge, and there is no description of what the driver wouldreceive from such a contract. The Appellant submits that a valid contract wasnot offered; even if (non-compliant) signs were present, the driver was notoffered the opportunity to enter into a negotiation in order to influence thecontractual terms, nor given the opportunity to accept or reject any terms. TheAppellant submits that, if signs were present on the day of the alleged event,they were not prominent enough to form a valid contract. The Appellant submitsthat no detailed terms relating to this Operator's onerous, inflated penaltycharge were visible, and it is therefore apparent that the requirements forforming a contract (i.e. consideration flowing between the two parties, offer,acceptance and fairness and transparency of terms offered in good faith) werenot satisfied.
6) Inadequate and incomplete road/line markings
The Appellant contends that the bay was not correctly marked andonly marked on three sides as detailed in the attached photograph. TheAppellant therefore puts NCP to provide proof that the road markings of the bayin question are in accordance with their published standard markings and theterms and conditions of parking.
7) No actual loss was made by NCP
The correct fee had been paid for the Appellants vehicle to beparked on the date of the alleged contravention. Furthermore, the Appellantsvehicle was parked in the final bay at the end of a row of spaces and thereforewas adjacent to only one other bay only which was occupied by another vehicleas seen in the attached photograph. The appellant therefore contends that NCP made no initial loss due to the parking of the vehicle ###### on #### asalleged by NCP.
I would therefore ask the adjudicator to allow this appeal and theOperator to cancel the Charge.
Yours faithfully
0
Comments
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Just be sure, in terms of 'No Standing', that the car park isn't owned by NCP.
In the vast majority of cases the likelihood of a PPC owning the car park is about as great as them owning Buck House.
But .... NCP is different; they do own some.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Sorry, I'm unable to post a photo due to being a new member by the looks of it. These are links to photos of the car parked and PCN.
tinypic.com/m/ilm3jk/1
tinypic.com/m/ilm3k2/1
tinypic.com/m/ilm3o8/1
tinypic.com/m/ilm3oj/1
I assume the parking attendat wasnt happy with the front wheel being slightly on the raised curb.0 -
The car park is a train station car park and the signage next to the payment machines has both 'Greater Anglia' and 'NCP' printed on it. I've tried google but cant find who it is owned by.0
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Thanks ukomaas. Other than that, do you think that it is good to go? Which of the photos do you think I should include - if any?0
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http://tinypic.com/m/ilm3jk/1
http://tinypic.com/m/ilm3k2/1
http://tinypic.com/m/ilm3o8/1
http://tinypic.com/m/ilm3oj/1Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Your point 6 is actually that the area in question had the appearance of a bay with no specific making such as hatching to indicate otherwise. The area had 3 white lines around it and that the signs do not indicate that there is a requirement for 4 lines to make a space a bay.0
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I don't think any of those pics enhance your case. The one showing your wheel on the parapet might just persuade POPLA that you in fact 'breached' the terms of parking.
In this case I think you should totally discard appeal points 3 and 6 (they would never have been winning points no matter how overwhelming your evidence was), so it's concentrate on the points that win - no GPEOL, no locus standi, signage - especially the confusion as to who any contract might have been formed with, Greter Anglia or NCP (or both), it's not for the consumer to try to work out, or second guess.
But if you are going to make this added 'signage' point, you need to say that you, as keeper, went back to check the signs at a later date, because in your appeal as it stands, you are saying the driver did not see the signs.
On reflection, probably best not to add this, leave it as it is.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Thanks for the advice guys, I'll tweek it when I get home.
Also, do you tend to wait until the end of the appeal period or just submit when ready? I've read people suggesting both.0 -
You need to add 'no keeper liability' as it's not 'relevant land' under the POFA; it's subject to railway byelaws which cover the parking of vehicles in the railway environs. Also because NCP have (presumably) not served any Notice to Keeper despite not knowing who was driving and trying to pursue you as keeper, when that's not possible on this land. That's a slam-dunk winning appeal point at POPLA you have overlooked... unless your original appeal already gave away who was driving - but we don't know because this POPLA appeal sits here in isolation on its own thread with no background thread. If you had an original thread on this please as Crabman to merge them both as it doesn't help us to help you by posting a new thread just with a POPLA appeal on it.
You should not rush it, get it right but submit it within the 28 days from the POPLA code's start day which you should check on the Parking Cowboy's website 'POPLA code checker'. If you have not given away who was driving and are going to add the bit above about NCP never serving any NTK then of course, make sure POPLA get this after day 56 from the parking event (but before the POPLA code expires!) which makes it too late for NCP to address it.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
I've taken your comments on board and updated my appeal, removing the two points and adding the section regarding visiting the site to view the sinage (in the signage section) and the not 'relevant land' arguement - which I have put as my top point as it is clearly my strongest.
Coupon-Mad, I didnt have a thread prior to this one. I wrote my initial appeal in third person and mainly had a moan and said that my vehicle wouldn't be parked there again if they upheld the parking charge which would lose them circa £1.9k as it is parked there 5 days a week all because of their greed to make an extra £70. This tactic worked with my first PCN but not this time....
Here is my revised Appeal:
POPLA Reference Number: ##########
As the registered keeper of the vehicle #### ### I wish to appeal a recentparking charge issued by National Car Parks Ltd. I submit the points below toshow that I am not liable for the parking charge:
1) Railway land is not ‘relevant land’
2) The charge does not represent a genuine pre-estimate of loss
3) No standing or authority to pursue charges nor form contracts withdrivers
4) Unreasonable / unfair terms
5) The signage was not in accordance with the BPA code of practiceand was not sufficiently prominent to form a contract
6) No actual loss was made
1) Railway land is not ‘relevant land’
Since byelaws apply to railway land, the land is not ‘relevantland’ within the meaning of PoFA and so is specifically excluded from 'keeperliability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am theregistered keeper I am not legally liable as this Act does not apply on thisland. I ask the Operator for strict proof otherwise if they disagree with thispoint and would require them to show evidence including documentary proof fromthe Rail authorities that this land is not already covered by bylaws. The onusfalls upon National Car Parks Ltd (NCP) to demonstrate this and I put them tostrict proof on this point.
2) The charge does not represent a genuine pre-estimate of loss
The charge of £75 levied for ‘not parking correctly within themarkings of a bay space’ is punitive and unreasonable, contravening the BritishParking Association’s Code of Practice section 19.
The BPA Code of Practice clause 19.5 states:
“If the parking charge that the driver is being asked to pay is for a breachof contract or act of trespass, this charge must be based on the genuinepre-estimate of loss that you suffer.“
This is followed by clause 19.6 which states:
“If your parking charge is based upon a contractually agreed sum, thatcharge cannot be punitive or unreasonable.“
The BPA Code of Practice requires that if a parking charge is for an allegedbreach of contract then it must prove to be a genuine pre-estimate of lossflowing from the incident. This cannot be a subsequently devised statement asthis would not be a pre-estimate. The Appellant requests that NCP provides adetailed breakdown of how the amount of the charge was calculated in the formof documented, specific evidence applicable to this car park and this allegedincident. According to previous POPLA adjudications and Court rulings, runningcosts, such as erecting signage, wages, uniform and office costs may not beincluded in the calculations as they would have occurred whether a breachoccurred or not.
Given that NCP apparently charge the same lump sum for parkingoutside the marked lines of a bay as they would an overstay of 30 minutes or 5hours, and the same fixed charge applies to any alleged contravention (whetherserious and damaging or trifling), it is clear there has been no regard paid toestablishing that this charge is a genuine pre-estimate of loss caused by thisalleged breach of contract by NCP.
3) No standing or authority to pursue charges nor form contracts withdrivers
The BPA Code of Practice states at 7.1 that:
“If you do not own the land on which you are carrying out parkingmanagement, you must have the written authorisation of the landowner (or theirappointed agent) before you can start operating on the land in question. Theauthorisation must give you the authority to carry out all the aspects of themanagement and enforcement of the site that you are responsible for. Inparticular, it must say that the landowner requires you to keep to the Code ofPractice, and that you have the authority to pursue outstanding parkingcharges, through the courts if necessary.”
It is the Appellants claim that NCP (the Operator) has no legal status toenforce this charge because there is no assignment of rights to pursue penaltycharge notices in their name in court nor standing to form contracts withdrivers. The Operator does not own this car park and appear (at best) to have abare licence to put signs up and ticket vehicles on site, merely acting asagents for the Train Operator. In order to refute the claim and to comply withthe above paragraph the Appellant requires that the Operator provides a fullcopy of the contemporaneous, signed, dated and most importantly un-redactedcontract with the landowner. The Operator has noproprietary interest in the land, so they have no standing to make contractswith drivers in their own right, nor to pursue charges for breach in their ownname. In the absence of such title, NCP must demonstrate assignment of rightsfrom the landowner to pursue charges for breach in their own right, includingat court level. Evidence has not been produced by the Operator in theirrejection statement so the Appellant has no proof that such an arrangement isin existence. A commercial site agent for the true landholder has neitherautomatic standing nor authority in their own right which would meet the strictrequirements of section 7 of the BPA Code of Practice.
The Appellant therefore puts NCP to strict proof to provide POPLA and myselfwith an unredacted, contemporaneous copy of the contract between NCP and thelandowner. This is required so that POPLA and the Appellant can check that itallows this Operator to make contracts with drivers themselves and providesthem with full authority to pursue charges, including a right to pursue them incourt in their own name. Please note that a witness statement to the effectthat a contract is in place will not be sufficient to provide sufficient detailof the contract terms (such as revenue sharing, genuine intentions of theserestrictions and charges, set amounts to charge for each stated contravention,etc.).
4) Unreasonable / unfair terms
The charge being claimed by the Operator is apunitive sum. According to the Office of Fair Trading ‘Guidance for the UnfairTerms in Consumer Contracts Regulations 1999’ it “is unfair to imposedisproportionate sanctions for breach of contract. A requirement to pay more incompensation for a breach than a reasonable pre-estimate of the loss caused tothe supplier is one kind of excessive penalty. Such a requirement will, in anycase, normally be void to the extent that it amounts to a penalty under Englishcommon law...''
It is wholly unreasonable to attempt to profit by charging a disproportionatesum where no loss has been caused by a driver who has paid and displayed aticket. The appellant requests strict proof that the charge does not cause asignificant imbalance to the Appellants detriment and to justify the Operatorscharge does not breach the UTCCRs and UCT Act.
5) The signage was not in accordance with the BPA code of practiceand was not sufficiently prominent to form a contract
Having visited the location of the alleged “breach”, it is evidentthe signage provided by NCP does not comply with the BPA code of practice inparticular 18.3, 18.5, 18.7, 18.8 and 18.10. In addition, signs are unlit andtherefore illegible in the hours of darkness and furthermore, it is unclear asto who any contract might have been formed with as the signage states both ‘GreaterAnglia’ and ‘NCP’. NCP are required to show evidence to the contrary.
Unclear signage breaches Appendix B of the BPA Code of Practice which statesthat contractual terms on entrance signs must be clearly readable without adriver having to turn away from the road ahead. A Notice is not imported intothe contract unless brought home so prominently that the party 'must' haveknown of it and agreed terms beforehand. In the absence of sufficientlyprominent and detailed signage, the driver could not have been made aware ofany charges applicable nor that a contract had even been proposed by NCP inrespect of the alleged event. There is no offer to park at the location bypayment of a charge, and there is no description of what the driver wouldreceive from such a contract. The Appellant submits that a valid contract wasnot offered; even if (non-compliant) signs were present, the driver was notoffered the opportunity to enter into a negotiation in order to influence thecontractual terms, nor given the opportunity to accept or reject any terms. TheAppellant submits that, if signs were present on the day of the alleged event,they were not prominent enough to form a valid contract. The Appellant submitsthat no detailed terms relating to this Operator's onerous, inflated penaltycharge were visible, and it is therefore apparent that the requirements forforming a contract (i.e. consideration flowing between the two parties, offer,acceptance and fairness and transparency of terms offered in good faith) werenot satisfied.
6) No actual loss was made by NCP
The correct fee had been paid for the Appellants vehicle to beparked on the date of the alleged contravention. Furthermore, the Appellantsvehicle was parked in the final bay at the end of a row of spaces and thereforewas adjacent to only one other bay only which was occupied by another vehicleon the date of the alleged offence. The appellant therefore contends that NCP madeno initial loss due to the parking of the vehicle #### ### on ####### asalleged by NCP.
I therefore respectfully request that POPLA uphold my appeal andinstruct NCP to cancel the Charge.
Yours faithfully0
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