POPLA Appeal Letter

ipswich10

Hi all

Sorry have re-written my appeal based on a template that was more specific to my circumstances of having overstayed by a few minutes...could an expert please advise of anything glaringly obvious before I submit..

I am the registered keeper and I wish to appeal a recent parking charge from UKPC. I submit the points below to show that I am not liable for the parking charge:

1) No genuine pre-estimate of loss
2) No standing or authority to pursue charges nor form contracts with drivers.
3) The signage was unlit and not readable so there was no valid contract formed
4) Unreasonable / Unfair Terms

1) No genuine pre-estimate of loss
This car park is Pay and Display and as far as I can ascertain as keeper, a payment was made. Having appealed to the operator and receiving a rejection to my appeal I had very little information so went and checked the signage and it seems that up to 17 minutes would have cost £0.39 so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £0.39 at the most. UKPC have not told supplied the keeper with these details, despite it being a prerequisite of Schedule 4 (see point #2).

The Operator cannot reasonably claim a broad percentage of their entire business running costs, as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. I suggest there was never any advance meeting held with the client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged overstay is 17 minutes or 17 hours.

The Operator alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement) would fall foul of Mr Greenslade's explanation about GPEOL in the POPLA 2014 Report and would also fall foul of the DFT Guidance about private parking charges.

In this case, even if the Operator contends there was a small outstanding P&D sum they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event. The driver in this case states that the car park was not even half-full so there was no loss suffered as a result of this parking event.

An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.

In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely.

If the Parking Charge is instead argued to be a contractually agreed sum (which the wording of the PPC 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.

2) No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, UKPC must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put UKPC to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between UKPC and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to UKPC.

3) The signage was not readable so there was no valid contract formed between UKPC and the driver
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 UKPC have no entry signage with full terms which could ever be readable at eye level for a driver in moving traffic on arrival on a dark December night as is the case in this situation. 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 at night. The driver also states that there was only one working pay and display machine and this was unlit making the signs and its small text to hard to read.

Any photos supplied by UKPC to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera to increase the size of the writing. The Operator needs to produce night-time photos of the signs placed at both entrances and the pay and display machines without enhancement of flash photography. These photos should specifically show the height of the signs and where they are at the entrance, but more importantly whether a driver in a moving car can see and clearly read all the text on them when deciding to enter the car park in night time 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.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

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