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PCN form CPM date query
Comments
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I'm not expecting anyone to do it for me and I do appreciate the help.
no problem
but this statement belies your replyI was posting the details of my situation hoping someone could point me to the right template, as I am also aware that CPM word their signs differently. I was not going to use all the mitigating circumstances. But on reading through threads where people have posted POPLA appeal letters, they are being asked what the circumstances are, so these are mine.
it requires us to make a reasoned assumption on what your appeal would consist of , despite there being no pictures of the signage, no pictures of the car park, no evidence at all (despite post #2 asking you to do so, on tinypic or photobucket)
then for us to sort through all of the appeal examples looking for a close match, if one isnt found it requires us to go through other appeals that are not shortlisted looking for a close match
then it requires us to copy and paste a link to that close match, so that you can just click on it and go from there ! - that consists of 95% of the work required
not sure you have thought it through, but I have just outlined YOUR task , not ours (yet you implied you wanted the above tasks done for you in your earlier reply)
so sorry if I disagree
almost everybody that comes on this forum wants that scenario, so they are pointed firmly at the newbies sticky thread and told to read it and the links, plus if necessary to read the other sticky threads too, maybe 1 in 10 thousand gets the scenario I outlined, but usually they suffer from some problem disability like Aspergers etc, so deserve a free helping hand, the rest is DIY or pay PTA
this new one here https://forums.moneysavingexpert.com/discussion/5156589 was told the same process and given similar advice, as they all are
I will still try and help you if at some point you post a draft , a carefully considered popla appeal , even if it has a basis on the ones being used by mike (I have seen your posts in the threads he has posted in too, especially the ones with the incorrect codes caused by the incompetence of CPM)
I hope that by now you will have realised from all the replies that people are still awaiting your draft popla appeal0 -
CPM popla win , hot off the press
https://forums.moneysavingexpert.com/discussion/5070813
pick the bones out of that one0 -
This is the response I got to my email" good news as I get an extension. :-)
I have investigated your complaint with the operator and can advise as follows.
Unfortunately one of the digits contained within the code was incorrect and therefore this made the code invalid. The operator has identified the issue and rectified it. UK Car Park Management have confirmed a new POPLA code will be sent out to you. This should be received within 14 days.
Once the Code has been received you will have 28 days to appeal to POPLA – the independent appeals service.
In view of the above, I have closed the investigation.
Thank you for bringing this matter to my attention.
Kind regards,
AOS Investigations Team0 -
Link to my pictures - at last! Took me a while to do:
hxxp://s156.photobucket.com/user/Seahorse65/library/PCN
POPLA letter to follow...0 -
Dear POPLA Assesor,
Re ********* parking charge notice ********
POPLA ref **********
I am the registered keeper and I wish to appeal this charge on the following grounds;
1) No Genuine Pre Estimate of Loss
2) Contract with Landowner
3) Inadequate Signage
4) The alleged contravention did not occur....???[/COLOR]
5) Notice To Keeper - no keeper liability
6) Breach of POPLA process
1) a) The Charge is not a contractual fee – it is a disguised breach
As stated on both the parking charge notice (which is described as exactly that, NOT an invoice for an agreed fee) and the rejection letter to appeal it states that the charge is for being "in contravention of" and having "breached" the terms and conditions of parking. In addition, the wording on their sign also states that "unauthorised parking may result in your vehicle being issued with a parking charge notice".
The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be consideration, it would have to mean that permission to park without a permit was given providing a fee was paid.
Clearly permission to "park in breach" cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.
I would like to highlight a similar appeal against CPM where POPLA assessor Marina Kapour found that
"The charge must either be for damages as submitted by the Appellant, or for consideration - the price paid for the parking as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay provided he or she pay the charge. Clearly, permission to park 'in breach' is not granted, and so the parking charge cannot be a contractual price. It is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge and so it cannot be consideration".
I would also highlight POPLA appeal reference 9663053967 where an initially refused appeal against the same Operator who again, made the same attempt to describe the charge as a contractually agreed fee on their signage was allowed by the Lead Adjudicator. It was found that the charge was a penalty and as such was not a genuine pre estimate of loss. I contend that the same applies in my case, and POPLA must show consistency where appellants raise similar arguments.
The amount of £100 demanded is punitive and unreasonable, is not a contractual fee but is a disguised breach and must be shown to be a genuine pre estimate of loss to be enforceable.
b) The Charge is Not a Genuine Pre Estimate of Loss
The charge of £100 is being sought for an alleged breach of the parking terms namely “parking without displaying a valid Disabled Badge” consequently I contend, and the BPA code of practice states, that a charge for breach must be based on the genuine pre estimate of loss.
The Office of Fair Trading has stated to the BPA that 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.
The car park is a free car park with no mechanism or demand for payment to park, there was no damage nor obstruction caused (nor is any being alleged) and I therefore contend there was no loss caused to either the Operator, or the landowner, by any alleged breach.
In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated that a stipulation "will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach" and "there is an assumption that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".
As the charge in this case is the same lump sum and the same amount is charged for any alleged contravention, it is clear that this is punitive and that no consideration has been given to calculating a genuine pre estimate of loss in this case.
In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred as this is a free car park and no sum is due to either the Operator or the Landowner.
I therefore require the Operator to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach.
Operational business costs cannot possibly flow as a direct result of any breach as the operator would be in the same position whether or not any breaches occur.
I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.
The operator will no doubt state that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.
This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier - there was no initial loss.
2) Contract with Landowner
The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary nor agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).
In order to comply with the BPA code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;
a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.
b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provide a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.
Even if a basic contract is produced that mentions parking charge notices, 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 the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.
I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.
3) Inadequate Signage
The signage is not legible so no valid contract can be formed between CPM and the driver. The signage is :
a) Placed partially behind a drain pipe rendering it unreadable.
b) Is unlit rendering it unreadable in anything other than daytime conditions – at the time of alleged breach it was dark and the sign unreadable.
The BPA code of practice February 2014 clearly states that "Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand".
I assert that being inconspicuous, unable to be read due to positioning and being unlit in the dark, breaches this code.
I therefore require that the Operator submit evidence of the "clear and prominent signage throughout the development" referred to in their rejection letter in the form of site maps and photographs clearly indicating the location and height of said signage at the time of the alleged breach.
I have taken photographs myself for the purpose of rebuttal should the need arise and would once again remind the Operator of the requirement to submit copies of any evidence to the Appellant allowing sufficient time for consideration and rebuttal.
4) The alleged contravention did not occur.
i don't think I can use this point?
5) Notice To Keeper - no keeper liability
The notice to keeper fails to adhere to POFA in a number of respects and therefore cannot pass liability to the keeper.
a) The NTK fails to identify the 'creditor'. It could be 'UKCPM' , ‘CPM’ or ‘UK Car Park Management Ltd’ – all of which are mentioned on signs/NTK/Notices, leading to uncertainty about who the creditor might be.
Alternatively, the creditor could be the owner or lessee of the land, or a managing agent or CPM's client, or another party. It is not for me to guess who the creditor is.
b) Omission of any mention relating to 'period of parking' breaching POFA 2012.
c) Fails to repeat all details from the PCN. Omitting wording from paragraph 8 of Schedule 4 fails to create a compliant Notice to Keeper.
6) Breach of POPLA process
The Operator rejection letter of the initial direct appeal failed to adhere to direction from the November 2013 POPLA newsletter (found at hxxx://xxx.popla.org.uk/Newsletters.htm) by not clearly stating how to appeal and not including a clear reference and explanation of the POPLA appeal code, which was only included alongside general references at the head of the letter , specifically this was directed against by POPLA.
“Failure by an operator to provide a verification code in their rejection letter is a breach of the Code of Practice, sanctionable by the BPA.
Rather than just a reference, the verification code should be clearly identifiable as such, for example:
Your verification code, which you will need to appeal to POPLA, is XXXXXXXXXX.
Even if the verification code is automatically printed on an enclosed appeal form, it must still be in the dated rejection notice/letter. If it is not, and if the issue arises, it may then be difficult for the operator to show exactly when the verification code was provided to an appellant.”
This concludes my appeal which I respectfully request is upheld
Regards0 -
Please advise if I need to out anything else. Thank you.
Dear POPLA Assesor,
Re ********* parking charge notice ********
POPLA ref **********
I am the registered keeper and I wish to appeal this charge on the following grounds;
1) No Genuine Pre Estimate of Loss
2) Contract with Landowner
3) Inadequate Signage
4) The alleged contravention did not occur....????
5) Notice To Keeper - no keeper liability
6) Breach of POPLA process
1) a) The Charge is not a contractual fee – it is a disguised breach
As stated on both the parking charge notice (which is described as exactly that, NOT an invoice for an agreed fee) and the rejection letter to appeal it states that the charge is for being "in contravention of" and having "breached" the terms and conditions of parking. In addition, the wording on their sign also states that "unauthorised parking may result in your vehicle being issued with a parking charge notice".
The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be consideration, it would have to mean that permission to park without a permit was given providing a fee was paid.
Clearly permission to "park in breach" cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.
I would like to highlight a similar appeal against CPM where POPLA assessor Marina Kapour found that
"The charge must either be for damages as submitted by the Appellant, or for consideration - the price paid for the parking as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay provided he or she pay the charge. Clearly, permission to park 'in breach' is not granted, and so the parking charge cannot be a contractual price. It is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge and so it cannot be consideration".
I would also highlight POPLA appeal reference 9663053967 where an initially refused appeal against the same Operator who again, made the same attempt to describe the charge as a contractually agreed fee on their signage was allowed by the Lead Adjudicator. It was found that the charge was a penalty and as such was not a genuine pre estimate of loss. I contend that the same applies in my case, and POPLA must show consistency where appellants raise similar arguments.
The amount of £100 demanded is punitive and unreasonable, is not a contractual fee but is a disguised breach and must be shown to be a genuine pre estimate of loss to be enforceable.
b) The Charge is Not a Genuine Pre Estimate of Loss
The charge of £100 is being sought for an alleged breach of the parking terms namely “parking without displaying a valid Disabled Badge” consequently I contend, and the BPA code of practice states, that a charge for breach must be based on the genuine pre estimate of loss.
The Office of Fair Trading has stated to the BPA that 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.
The car park is a free car park with no mechanism or demand for payment to park, there was no damage nor obstruction caused (nor is any being alleged) and I therefore contend there was no loss caused to either the Operator, or the landowner, by any alleged breach.
In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated that a stipulation "will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach" and "there is an assumption that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".
As the charge in this case is the same lump sum and the same amount is charged for any alleged contravention, it is clear that this is punitive and that no consideration has been given to calculating a genuine pre estimate of loss in this case.
In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred as this is a free car park and no sum is due to either the Operator or the Landowner.
I therefore require the Operator to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach.
Operational business costs cannot possibly flow as a direct result of any breach as the operator would be in the same position whether or not any breaches occur.
I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.
The operator will no doubt state that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.
This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier - there was no initial loss.
2) Contract with Landowner
The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary nor agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).
In order to comply with the BPA code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;
a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.
b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provide a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.
Even if a basic contract is produced that mentions parking charge notices, 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 the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.
I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.
3) Inadequate Signage
The signage is not legible so no valid contract can be formed between CPM and the driver. The signage is :
a) Placed partially behind a drainpipe rendering it unreadable.
b Is unlit rendering it unreadable in anything other than daytime conditions – at the time of alleged breach it was dark and the sign unreadable.
The BPA code of practice February 2014 clearly states that "Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand".
I assert that being inconspicuous, unable to be read due to height, design, positioning, lighting, font size used and being unlit in the dark, breaches this code.
I therefore require that the Operator submit evidence of the "clear and prominent signage throughout the development" referred to in their rejection letter in the form of site maps and photographs clearly indicating the location and height of said signage at the time of the alleged breach.
I have taken photographs myself for the purpose of rebuttal should the need arise and would once again remind the Operator of the requirement to submit copies of any evidence to the Appellant allowing sufficient time for consideration and rebuttal.
4) The alleged contravention did not occur.
Do not believe I can out anything here?
5) Notice To Keeper - no keeper liability
The notice to keeper fails to adhere to POFA in a number of respects and therefore cannot pass liability to the keeper.
a) The NTK fails to identify the 'creditor'. It could be 'UKCPM' , ‘CPM’ or ‘UK Car Park Management Ltd’ – all of which are mentioned on signs/NTK/Notices, leading to uncertainty about who the creditor might be.
Alternatively, the creditor could be the owner or lessee of the land, or a managing agent or CPM's client, or another party. It is not for me to guess who the creditor is.
b) Omission of any mention relating to 'period of parking' breaching POFA 2012.
c) Fails to repeat all details from the PCN. Omitting wording from paragraph 8 of Schedule 4 fails to create a compliant Notice to Keeper.
6) Breach of POPLA process
The Operator rejection letter of the initial direct appeal failed to adhere to direction from the November 2013 POPLA newsletter (found at hxxx://xxx.popla.org.uk/Newsletters.htm) by not clearly stating how to appeal and not including a clear reference and explanation of the POPLA appeal code, which was only included alongside general references at the head of the letter , specifically this was directed against by POPLA.
“Failure by an operator to provide a verification code in their rejection letter is a breach of the Code of Practice, sanctionable by the BPA.
Rather than just a reference, the verification code should be clearly identifiable as such, for example:
Your verification code, which you will need to appeal to POPLA, is XXXXXXXXXX.
Even if the verification code is automatically printed on an enclosed appeal form, it must still be in the dated rejection notice/letter. If it is not, and if the issue arises, it may then be difficult for the operator to show exactly when the verification code was provided to an appellant.”
This concludes my appeal which I respectfully request is upheld
Regards0 -
Got a a new POPLA code, the original one was invalid
hxxp://s156.photobucket.com/user/Seahorse65/media/PCN/imagejpg1-1.jpg.html0 -
Yep, I got a reprint of the letter and a new POPLA code. No explanation apology or anything, but appear to have gained some time. Appeal date is now up until 3 March.
hxxp://s156.photobucket.com/user/Seahorse65/media/PCN/imagejpg1-1.jpg.html0 -
Whoops a PPC makes an administrive error and we are expected to accept this but lo and behold a driver puts in a slightly wrong reg and this gives them cart Blanche for them to issue and pursue their nasty PCN.s. You couldn't make it up :rotfl:I Am Charlie0
-
Please can someone look at this for me. Do I need to put anything else. Thank you.
Dear POPLA Assesor,
Re ********* parking charge notice ********
POPLA ref **********
I am the registered keeper and I wish to appeal this charge on the following grounds;
1) No Genuine Pre Estimate of Loss
2) Contract with Landowner
3) Inadequate Signage
4) The alleged contravention did not occur....????
5) Notice To Keeper - no keeper liability
6) Breach of POPLA process
1) a) The Charge is not a contractual fee – it is a disguised breach
As stated on both the parking charge notice (which is described as exactly that, NOT an invoice for an agreed fee) and the rejection letter to appeal it states that the charge is for being "in contravention of" and having "breached" the terms and conditions of parking. In addition, the wording on their sign also states that "unauthorised parking may result in your vehicle being issued with a parking charge notice".
The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be consideration, it would have to mean that permission to park without a permit was given providing a fee was paid.
Clearly permission to "park in breach" cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.
I would like to highlight a similar appeal against CPM where POPLA assessor Marina Kapour found that
"The charge must either be for damages as submitted by the Appellant, or for consideration - the price paid for the parking as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay provided he or she pay the charge. Clearly, permission to park 'in breach' is not granted, and so the parking charge cannot be a contractual price. It is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge and so it cannot be consideration".
I would also highlight POPLA appeal reference 9663053967 where an initially refused appeal against the same Operator who again, made the same attempt to describe the charge as a contractually agreed fee on their signage was allowed by the Lead Adjudicator. It was found that the charge was a penalty and as such was not a genuine pre estimate of loss. I contend that the same applies in my case, and POPLA must show consistency where appellants raise similar arguments.
The amount of £100 demanded is punitive and unreasonable, is not a contractual fee but is a disguised breach and must be shown to be a genuine pre estimate of loss to be enforceable.
b) The Charge is Not a Genuine Pre Estimate of Loss
The charge of £100 is being sought for an alleged breach of the parking terms namely “parking without displaying a valid Disabled Badge” consequently I contend, and the BPA code of practice states, that a charge for breach must be based on the genuine pre estimate of loss.
The Office of Fair Trading has stated to the BPA that 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.
The car park is a free car park with no mechanism or demand for payment to park, there was no damage nor obstruction caused (nor is any being alleged) and I therefore contend there was no loss caused to either the Operator, or the landowner, by any alleged breach.
In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated that a stipulation "will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach" and "there is an assumption that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".
As the charge in this case is the same lump sum and the same amount is charged for any alleged contravention, it is clear that this is punitive and that no consideration has been given to calculating a genuine pre estimate of loss in this case.
In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred as this is a free car park and no sum is due to either the Operator or the Landowner.
I therefore require the Operator to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach.
Operational business costs cannot possibly flow as a direct result of any breach as the operator would be in the same position whether or not any breaches occur.
I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.
The operator will no doubt state that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.
This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier - there was no initial loss.
2) Contract with Landowner
The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary nor agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).
In order to comply with the BPA code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;
a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.
b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provide a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.
Even if a basic contract is produced that mentions parking charge notices, 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 the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.
I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.
3) Inadequate Signage
The signage is not legible so no valid contract can be formed between CPM and the driver. The signage is :
a) Placed partially behind a drainpipe rendering it unreadable.
b Is unlit rendering it unreadable in anything other than daytime conditions – at the time of alleged breach it was dark and the sign unreadable.
The BPA code of practice February 2014 clearly states that "Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand".
I assert that being inconspicuous, unable to be read due to height, design, positioning, lighting, font size used and being unlit in the dark, breaches this code.
I therefore require that the Operator submit evidence of the "clear and prominent signage throughout the development" referred to in their rejection letter in the form of site maps and photographs clearly indicating the location and height of said signage at the time of the alleged breach.
I have taken photographs myself for the purpose of rebuttal should the need arise and would once again remind the Operator of the requirement to submit copies of any evidence to the Appellant allowing sufficient time for consideration and rebuttal.
4) The alleged contravention did not occur.
Do not believe I can out anything here?
5) Notice To Keeper - no keeper liability
The notice to keeper fails to adhere to POFA in a number of respects and therefore cannot pass liability to the keeper.
a) The NTK fails to identify the 'creditor'. It could be 'UKCPM' , ‘CPM’ or ‘UK Car Park Management Ltd’ – all of which are mentioned on signs/NTK/Notices, leading to uncertainty about who the creditor might be.
Alternatively, the creditor could be the owner or lessee of the land, or a managing agent or CPM's client, or another party. It is not for me to guess who the creditor is.
b) Omission of any mention relating to 'period of parking' breaching POFA 2012.
c) Fails to repeat all details from the PCN. Omitting wording from paragraph 8 of Schedule 4 fails to create a compliant Notice to Keeper.
6) Breach of POPLA process
The Operator rejection letter of the initial direct appeal failed to adhere to direction from the November 2013 POPLA newsletter (found at hxxx://xxx.popla.org.uk/Newsletters.htm) by not clearly stating how to appeal and not including a clear reference and explanation of the POPLA appeal code, which was only included alongside general references at the head of the letter , specifically this was directed against by POPLA.
“Failure by an operator to provide a verification code in their rejection letter is a breach of the Code of Practice, sanctionable by the BPA.
Rather than just a reference, the verification code should be clearly identifiable as such, for example:
Your verification code, which you will need to appeal to POPLA, is XXXXXXXXXX.
Even if the verification code is automatically printed on an enclosed appeal form, it must still be in the dated rejection notice/letter. If it is not, and if the issue arises, it may then be difficult for the operator to show exactly when the verification code was provided to an appellant.”
This concludes my appeal which I respectfully request is upheld
Regards0
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