UKPC POPLA appeal letter advice...

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