Help...UKPC PCN Appeal Rejection Letter

ipswich10

Hi all

Been searching through this site for a few days now and need some advice.

Was issued a UKPC PCN for a very short overstay in a private car park (not attached to any shops or anything, it is an old public car park that is not been made private). There were signs as I had paid for 2 hours and was a few minutes late back to car. Car park was not full and it was late at night (no photo evidence) so there was no loss to the car park apart from the few minutes I overstayed. Annoyingly, in my fit of rage I came home and sent my appeal in (I did have a quick look online first but was I was obviously not thorough enough with this as had I been I would have ignored it until I received my NtK). My appeal to UKPC was very short (literally 3 lines long!) and I appealed as the Registered Keeper and ensured I used 3rd party with reference to the car. I essentially said the £100 charge was not a GPEOL as the car had only overstayed by a few minutes. Also they had got the colour wrong of my car. I obviously supplied them with my details (name, address, registered keeper for the appeal).

I have finally had a letter back from UKPC saying they have obviously rejected my appeal (shock!!) and have photographic evidence of car colour and have rectified their mistake and that the argument of GPEOL is unsubstantiated however they are not willing to provide a breakdown of costs (again shock!!). They have included a POPLA code with my letter which I have checked on the parking cow boys site and it appears genuine.

I have obviously read about how to win at POPLA and how to draft a letter etc which I will do but will a NtK need to be issued first as they still don't know who the driver was? Or am I beyond that now as I gave them my details as registered keeper?

Any advice on where to go from here and perhaps what I could include in my POPLA appeal (I have seen the drafts) but anything additional to my circumstances would be greatly appreciated.

Regards

bod1467

Check post #3 of the NEWBIES sticky. Your circumstances are largely irrelevant - stick to the tried and tested points.

(I assume their rejection included a POPLA code?)

ipswich10

Thank you...Yes at the top of the letter was the POPLA code which seemed valid when I had it checked on the parkingcowboys website. So I dont need to wait for NtK now?? I just need to lodge my appeal to POPLA?

Many thanks

Jim_AFCB

Yes, appeal to POPLA - but it is strongly advised that you post a draft here for comment before you send it.

Normally the advice is wait for the NtK in most circumstances, but since you have already appealed the NtD, and the POPLA code has to be used within a finite time, you need to get your appeal in.

ipswich10

Ok excellent I will start drafting thanks...last question...I am unsure as to whether I have 'breached contract' or 'contractually agreed sum' - how would I go about finding this out or do I just word my appeal to cover both bases?? If so do you have any advice on how I do that?

Thanks in advance

ipswich10

My first draft letter to POPLA - are there any other conditions I can include?!

Dear POPLA,

I am the registered keeper of vehicle reg xxx xxxx and I contend that I am not liable for the alleged parking charge. I wish to appeal against the notice on the following grounds:

1) The charge is not a genuine pre-estimate of loss
2) Lack of standing / authority from the landowner
3) No planning consent to charge motorists for any alleged contravention

1) The Charge is not a genuine pre-estimate of loss
In UKPC rejection letter to the registered keeper, they have stated that the charge is for a “breach of contract.” BPA CoP paragragh 19.5 states that “if the parking charge that the driver is being asked to pay is for a breach of contract, this charge must be based on the genuine pre-estimate of loss suffered.” The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. There is no loss flowing from this parking event because the car park was not even half full, so if the car in question was parked over the allotted time there was no loss of income for the operator or landowner as the vehicle was not denying any other vehicle of a car parking space. If UKPC refute this, I ask POPLA to request evidence from UKPC of the car park being full.

UKPC have not been willing to provide a breakdown of any initial quantifiable loss. I require UKPC to submit a breakdown of how these costs are calculated. As stated previously, the parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

As I submit that the charge is not a genuine pre estimate of loss, it would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.

If the Parking Charge is instead argued to be a contractually agreed sum (which the wording of the appeal rejection letter implies it is not; it is citing breach of contract), the BPA CoP paragraph 19.6 states “this cannot be punitive or unreasonable” which a charge of the amount stated clearly is. It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.

I put UKPC to strict proof to the contrary if they wish to rebut my challenge.

2) Lack of standing/authority from landowner
UKPC has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put UKPC to strict proof of the contract terms with the actual landowner (not a lessee or agent). UKPC have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that UKPC are entitled to pursue these charges in their own right.

I require UKCPS to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

3)No planning consent to charge motorists for any alleged contravention
I have no evidence that UKPC or their client have planning consent to charge motorists for any alleged contravention.

Planning consent is required for car parks and these have conditions that grant certain permissions because the car park provides a service to the community. To charge motorists for an alleged breach of parking terms and conditions, planning consent is required. I have no evidence that planning consent was obtained for this change and I put the parking company to strict proof to provide evidence that there is planning consent to cover the current parking conditions and chargeable regime in this car park.

I therefore respectfully request that my appeal is upheld and the charge is dismissed

ipswich10

Hi all

I'm at POPLA stage of appealing UKPC CPN. Could really do with an expert opinion and advice please? My circumstances in brief;

1) The car park used to be public but now private and is just a general car park (no retail attached to it)

2) I appealed as registered owner that evening (I was so angry!!) not driver so therefore have not had NtK

3) I had P&D for 2 hours but was 16 minutes late back to my car as film overran (have got PCN & P&D ticket to prove it was 16 minutes and the cinema tickets)

4) They got the colour of my car wrong but told me in rejection appeal letter they have corrected this as they had photo evidence

5) It was at 10pm at night and the signs are reflective but they are small on the entrance (cant read the smaller writing even if stationary regarding the parking charges) and there were two pay machines not working and the only other one working was/is poorly lit (have photo evidence although it is made of the reflective material).

So here is my POPLA appeal - should anything be deleted or added? Thanks in advance...

Dear POPLA,

I am the registered keeper of vehicle reg xxx xxxx and I contend that I am not liable for the alleged parking charge. I wish to appeal against the notice on the following grounds:
1) The charge is not a genuine pre-estimate of loss
2) Lack of standing / authority from the landowner
3) Unlit signage
4) Unreasonable / unfair terms

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

In the UKPC rejection letter to the registered keeper, they have stated that the charge is for a “breach of contract.” BPA CoP paragragh 19.5 states that “if the parking charge that the driver is being asked to pay is for a breach of contract, this charge must be based on the genuine pre-estimate of loss suffered.” The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. There is no loss resulting from this parking event because the car park was not even half full, so if the car in question was parked over the allotted time there was no loss of income for the operator or landowner as the vehicle was not denying any other vehicle of a car parking space. If UKPC refute this, I ask POPLA to request evidence from UKPC of the car park being full.

UKPC have not been willing to provide a breakdown of any initial quantifiable loss. I request UKPC to submit a breakdown of how these costs are calculated. As stated previously, the parking charge must be an estimate of likely losses resulting from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

As I submit that the charge is not a genuine pre estimate of loss, it would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.

If the Parking Charge is instead argued to be a contractually agreed sum (which the wording of the appeal rejection letter implies it is not; it is citing breach of contract), the BPA CoP paragraph 19.6 states “this cannot be punitive or unreasonable” which a charge of the amount stated clearly is. It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.
I put UKPC to strict proof to the contrary if they wish to rebut my challenge.

2) Lack of standing/authority from landowner

UKPC has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put UKPC to strict proof of the contract terms with the actual landowner (not a lessee or agent). UKPC have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that UKPC are entitled to pursue these charges in their own right.

I require UKCP to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

3) Unlit signage

Following receipt of the charge, I visited the site in question. I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. Any alleged contract 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. In breach of Appendix B (Mandatory Entrance Signs) UKPC have no signage with full terms which could ever be readable at eye level for a driver in moving traffic on arrival. I believe the signs and any core parking terms that the parking company are relying upon were too small and not well enough lit for any driver to see, read, understand and agree to when driving into this car park.

The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to enter in all light conditions. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B and I require the operator to provide photographic evidence that proves otherwise.

4) Unreasonable/Unfair Terms

The charge levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

I contend it is wholly unreasonable to profit by charging a disproportionate sum where no loss has been caused by the car overstaying in a half empty car park. I put this Operator to strict proof to justify that their charge does not cause a significant imbalance to the detriment of the keeper and to justify that the charge does not breach the UTCCRs and UCT Act.

I therefore respectfully request that my appeal is upheld and the charge is dismissed

ipswich10

Any advice please?!

Umkomaas

Unlike many who copy and paste the bit about unlit signage, yet their parking charge was incurred in broad daylight, yours was clearly at night.

So you need to put some more emphasis on this at appeal point #3.

Otherwise it looks to have covered the main appeal points, without the War and Peace regurgitation of endless case law examples that most OPs have neither read nor have any clue about what they've copied and submitted to POPLA - and which have no impact on the adjudication.

Be prepared to receive a tome in return from the PPC, with some Jackanory attempt at a GPEOL justification, which you will need to do more work on in order to rebut. Let us know what happens.

ipswich10

Ok excellent - will add more in about it being at night thank you...I have photos of the signs at night - do you think it is worth submitting them or just leave that to the PPC to prove / disprove?!

What do you mean when you say tome?!

Many thanks

Umkomaas

You need to ask that the PPC produce nighttime photographs without enhancement by flash photography. Daylight photos would clearly be out of context and not acceptable.

Tome - a large volume of written paperwork - which many PPCs have templated to submit to POPLA (their 'evidence' pack).