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TCM 1st letter rejection
drwilliams83
Posts: 13 Forumite
Hi all,
I have received a letter from TCM rejecting my first appeal letter which I sent using the template off this website. I’ll explain the specifics of my case and then copy the letter Im sending to them below but Im abit unsure of the wording so could do with some advice if possible.
The girlfriend and I visited Star City which has a free car park and has no time limits on parking there. We went to the cinema and upon coming out we found a ticket on the windscreen. They were demanding £100 off me for parking on the pavement. Now I wouldn’t normally park on the pavement but we drove around for 10-15 mins and due to the Moscow State Circus and local fair being situated on the car park and blocking the access to the multi storey car park we couldn’t find a space. Although I did park on the pavement I wasn’t obstructing anything or anyone and wasn’t in anyones way including pedestrians as it was at the back of the complex where all there is, is a service yard. As soon as I got back I sent a letter using the template to TCM and sent it by “proof of post” but unfortunately after 42 days it has been rejected. They have given me the popla code which I have checked and is genuine and they have also kindly offered me a chance to pay up at the discounted rate of £60 and not £100 (how very nice haha). Its worth mentioning that I sent the letter off so soon as my car is a company car and is also a lease car so I had to send it straight away to avoid the company paying it.
After doing some reading and research on here I found a relevant post from “coupon-mad” so many thanks to him/her in advance. I have altered it slightly to make it relevant to my circumstances but may need some help rewording it if it needs it.
Dear POPLA,
I am the registered keeper & this is my appeal:
1) The Charge is not a genuine pre-estimate of loss
There is no loss flowing from this parking event because the circus and fair were blocking half of the car park and the multi storey car park reducing the amount of space and there was no loss of potential income in a free car park.
This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs 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.
2) Lack of signage - no contract with driver
I see that the sign is placed high up and is unlit, so that in darkness no signs are visible and the words are unreadable. I put TCM to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. There is no entrance sign, no lighting on site and the sign is not prominent, not reflective & placed too high to be lit by headlights. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.
The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.
3) Lack of standing/authority from landowner
TCM 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 TCM to strict proof of the contract terms with the actual landowner (not a lessee or agent). TCM 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 TCM are entitled to pursue these charges in their own right.
I require TCM 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.
4) Non compliant Notice to Keeper - no keeper liability established under POFA2 2012
On the NTK, the 'period of parking' is not shown, only the time of issue of an alleged PCN. Also the NTK completely misinforms the rights of a registered keeper to appeal, alleging that the appeal time has 'elapsed' when it has not and wrongly restricting the keeper's options at that stage to appealing only if the vehicle was stolen. I have no hesitation is stating to POPLA that this is a lie that POPLA should report to the BPA. In addition, the wording makes this a non-compliant NTK under the POFA 2012, Schedule 4.
Schedule 4 para8(1): 'A notice which is to be relied on as a {NTK is given} if the following requirements are met. (2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available'
The NTK is a nullity so no keeper liability exists.
5) Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.
An unlit sign of terms placed to high to read, is far from 'transparent'.
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".
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”
I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, does not cause a significant imbalance to my detriment 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.
So there you have it, I have reworded it slightly and hopefully you guys could offer some advice. Thanks in advance.
Dave
I have received a letter from TCM rejecting my first appeal letter which I sent using the template off this website. I’ll explain the specifics of my case and then copy the letter Im sending to them below but Im abit unsure of the wording so could do with some advice if possible.
The girlfriend and I visited Star City which has a free car park and has no time limits on parking there. We went to the cinema and upon coming out we found a ticket on the windscreen. They were demanding £100 off me for parking on the pavement. Now I wouldn’t normally park on the pavement but we drove around for 10-15 mins and due to the Moscow State Circus and local fair being situated on the car park and blocking the access to the multi storey car park we couldn’t find a space. Although I did park on the pavement I wasn’t obstructing anything or anyone and wasn’t in anyones way including pedestrians as it was at the back of the complex where all there is, is a service yard. As soon as I got back I sent a letter using the template to TCM and sent it by “proof of post” but unfortunately after 42 days it has been rejected. They have given me the popla code which I have checked and is genuine and they have also kindly offered me a chance to pay up at the discounted rate of £60 and not £100 (how very nice haha). Its worth mentioning that I sent the letter off so soon as my car is a company car and is also a lease car so I had to send it straight away to avoid the company paying it.
After doing some reading and research on here I found a relevant post from “coupon-mad” so many thanks to him/her in advance. I have altered it slightly to make it relevant to my circumstances but may need some help rewording it if it needs it.
Dear POPLA,
I am the registered keeper & this is my appeal:
1) The Charge is not a genuine pre-estimate of loss
There is no loss flowing from this parking event because the circus and fair were blocking half of the car park and the multi storey car park reducing the amount of space and there was no loss of potential income in a free car park.
This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs 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.
2) Lack of signage - no contract with driver
I see that the sign is placed high up and is unlit, so that in darkness no signs are visible and the words are unreadable. I put TCM to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. There is no entrance sign, no lighting on site and the sign is not prominent, not reflective & placed too high to be lit by headlights. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.
The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.
3) Lack of standing/authority from landowner
TCM 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 TCM to strict proof of the contract terms with the actual landowner (not a lessee or agent). TCM 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 TCM are entitled to pursue these charges in their own right.
I require TCM 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.
4) Non compliant Notice to Keeper - no keeper liability established under POFA2 2012
On the NTK, the 'period of parking' is not shown, only the time of issue of an alleged PCN. Also the NTK completely misinforms the rights of a registered keeper to appeal, alleging that the appeal time has 'elapsed' when it has not and wrongly restricting the keeper's options at that stage to appealing only if the vehicle was stolen. I have no hesitation is stating to POPLA that this is a lie that POPLA should report to the BPA. In addition, the wording makes this a non-compliant NTK under the POFA 2012, Schedule 4.
Schedule 4 para8(1): 'A notice which is to be relied on as a {NTK is given} if the following requirements are met. (2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available'
The NTK is a nullity so no keeper liability exists.
5) Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.
An unlit sign of terms placed to high to read, is far from 'transparent'.
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".
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”
I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, does not cause a significant imbalance to my detriment 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.
So there you have it, I have reworded it slightly and hopefully you guys could offer some advice. Thanks in advance.
Dave
0
Comments
-
Just thinking that if you got a windscreen ticket and replied immediately without waiting for the NtK due to the car being a company car, any reference to "notice to keeper" needs to be modified?
Thinking about it, does Point 4 need to be removed completely (as it is not really relevent) and the latter ones renumbered?
Wait for one of the more knowledgeable posters though.Bournemouth - home of the Mighty Cherries0 -
They haven't put notice to keeper on the letter to me its just the name of the company at the head of the letter with my name and address and then dear sir with the ref number also next to it.
I said I was the usual keeper though as recommended by the website.
Thanks for the advice on point 40 -
I want to send this off as soon as possible so if anyone else could help I would really appreciate it?0
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