Windscreen PCN - POPLA stage

ampersand

' Just that they want payment.' - quelle surprise! :-)

Just hold your nerve - Umkomaas' #8 is your guide.
#
re:'apparently agreed with the committee to enforce this, but I never received any notice of this' - another frequent subject on these Threads
- and
'I need to check my lease (which I believe mentions my own allocated space but not sure whether it says about other bays/parking) but am I in the right to tell management that I do not accept this enforcement?'

YES. Deep read of Lease should cover this.

Check requirement for active consultation and and/or opt-out, which you write to managing agents, esp. of they failed to make you aware of any such committee mtg. Check its constitution. Does your Lease imply/state you personally are bound by any Committee decisions to which you were not Party?

Loads more to dig in this and related veins, but these are your avenues of enquiry.

TB2013

ampersand wrote: »

' Just that they want payment.' - quelle surprise! :-)

Just hold your nerve - Umkomaas' #8 is your guide.
#
re:'apparently agreed with the committee to enforce this, but I never received any notice of this' - another frequent subject on these Threads
- and
'I need to check my lease (which I believe mentions my own allocated space but not sure whether it says about other bays/parking) but am I in the right to tell management that I do not accept this enforcement?'

YES. Deep read of Lease should cover this.

Check requirement for active consultation and and/or opt-out, which you write to managing agents, esp. of they failed to make you aware of any such committee mtg. Check its constitution. Does your Lease imply/state you personally are bound by any Committee decisions to which you were not Party?

Loads more to dig in this and related veins, but these are your avenues of enquiry.

Thanks again ampersand, still awaiting that NtK! There is another sign on entry to the residential area that says mostly the same stuff (except parking outside of a marked bay) with the words "Contractual Agreement" - will this wording help if the other point fails?

Also I've read my lease, it states:
"The right in common with the owners and occupiers of a Reserved Property to use the visitors parking spaces marked with a 'v' on the Plan for the occasional parking of a private motor vehicle for a period of not more than 12 hours at any one time"
Does this supersede the rules they have since put up? And would that class as going to work and returning as not more than 12 hours at a time? I guess the important wording is "occasional" so couldn't be used as a 2nd parking space

TB2013

Hi again,

My POPLA deadline is Friday (looking to submit (wed/thurs as advised) and have drafted an appeal below.

The only section I'm struggling with is the signage part, as when parking in the VP bay the other sign (linked in post #6) is directly in front when parking and is lit by a street lamp (so visible at night when the incident occurred). A link below shows the other sign and what it looks like on entering the area. Is it worth removing this section? The difference between this sign and the other is that this one talks about parking outside of a bay, whereas the other is specifically for the VP spots (where the pcn was issued). Does one overrule the other?

tiny url.com/pd64lkt
imgur.com/16WixEs

Any other advice on the wording etc. is greatly appreciated!

Dear POPLA Assessor,

As the registered keeper of vehicle registration XXXX XXX, I am appealing against parking charge number XXXXXXX using POPLA appeal code XXXXXX. I am not liable for the parking charge on the grounds stated below, and I respectfully ask that all points are taken into consideration.

1) Charge not a genuine pre-estimate of loss
2) Secure-a-space have failed to establish keeper liability
3) Contract with Landowner
4) Inadequate Signage

1) This charge is not a contractually agreed sum. It is a disguised breach and is not a genuine pre estimate of loss.

Secure-a-space have not made clear the basis of their charge. Having visited the site, it appears they may be claiming the charge is a contractually agreed sum which I dispute.

a) This charge is not a contractually agreed sum – it is a disguised breach

If this charge was a contractually agreed fee the sign would been worded to offer various durations of parking at various costs. In addition a payment mechanism would have been provided on-site and a VAT invoice supplied. This is not the case here.

This is a residential parking area and there is no mechanism to pay for additional parking. The signage indicates that parking for over 24 hours attracts a £100 charge and, as no limits are specified, this could equally apply for an additional 10 minutes, 10 weeks or indeed 10 years!

The same sum is also sought for returning to the car park within 48 hours, something clearly disallowed by the wording “No return within 48 hours “, which is followed by “agreeing to pay a parking charge notice of £100” - in other words “don’t do this or else” which shows the charges are actually for failing to comply, which equals a deterrent for breach.

In addition no VAT invoice has been provided and I have no evidence that this business operation on this car park has been registered for business rates.

Despite what the sign attempts to say, it is not an offer to park for a fee and it is clear that the true and predominant purpose of the alleged 'parking operation' at (insert location) is to deter breach and, in the absence of evidence that this charge is a genuine pre estimate of loss, it is an unrecoverable penalty.

In a recent ruling at Luton Crown Court 2014 (Civil Enforcement Ltd v McCafferty) the judge ruled that sum quoted on the sign was not a genuine offer to park at that price, but its main purpose was to deter. It was, therefore, a penalty dressed up as a contractual term, and not recoverable.

In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, there is the classic statement, in the speech of Lord Dunedin, 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”.

It would normally be for the owner to claim for loss which is nothing as there are no fees for using this car park and there was no damage or obstruction caused (nor is any being alleged). It is unfair to attempt to make a party pay excessively for an event that would normally be 'breach of contract'.

I require Secure-a-space to provide a VAT invoice, details of the daily rates of parking and proof that this chargeable regime at this location is registered for business rates.

b) Charge not a genuine pre-estimate of loss

If the sum is sought as damages for breach of contract then under established contract law it must be shown to be a genuine pre estimate of loss arising from the breach.

The parking area is free and there was no damage or obstruction caused (nor is any being alleged). I submit that on a residential parking area there can be no loss arising from any alleged overstay.

The demand for £100 is punitive, unreasonable, exceeds an appropriate amount, has no relationship to the loss that would have been suffered by the Landowner, and is therefore an unenforceable penalty. Furthermore, it exceeds the BPA’s own Code of Practice.
The BPA Code of Practice states:
19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.
The appellant requires Secure-a-space to provide a detailed breakdown of how the amount of the charge was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimates of loss.

POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.


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

2) Secure-A-Space have failed to establish keeper liability

Secure-a-space have failed to serve a Notice to Keeper. It has been completely omitted, Secure-a-space appear to have assumed it is not needed when a keeper sends reps against a windscreen ticket. But in the schedule it is clear that a NTK is a fundamental document where the Operator does not know who the driver was (and in this case there have been no admissions on that matter.) Therefore Secure-a-space have failed to establish keeper liability by forgetting the NTK.

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

3) Contract with Landowner

Secure-a-space does not own the land in question and has provided no evidence 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 practise, 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 Practise 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 provides 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.

Should a basic contract be produced mentioning 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.

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

4) Inadequate Signage
wip

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

Yours faithfully,
wxyz

TB2013

Just one final question before I submit these appeals - the initial appeal was in my name (in response to a complaint to the management on behalf of my visitor) - do I put the actual keeper details down when filling in the POPLA appeal? Or because the rejection letter was in my name, do I need to say I'm the keeper?
Thanks

Redx

if the pcn is in your name , then you are appealing in your name as keeper , using the popla code given to YOU

post #8 told you this

hassom

TB2013 wrote: »

Just one final question before I submit these appeals - the initial appeal was in my name (in response to a complaint to the management on behalf of my visitor) - do I put the actual keeper details down when filling in the POPLA appeal? Or because the rejection letter was in my name, do I need to say I'm the keeper?
Thanks

Mate can you please post the full POPLA appeal letter, I have the same issue as yours and could appreciate it please!

Thanks

TB2013

hassom wrote: »

Mate can you please post the full POPLA appeal letter, I have the same issue as yours and could appreciate it please!

Thanks

Here you go - is it at the same block of flats?

This was the latest appeal I had ready to go (thanks to the many examples on here, especially Mike172) before it was cancelled due to the NtK having a higher price on during the appeal process!

You will want to edit it slightly to match your circumstances (i.e. the night time part in the sign section, residential area, NtK being late etc.) if it doesn't apply.

Dear POPLA Assessor,

As the registered keeper of vehicle registration xxxxx, I am appealing against parking charge number xxxxx using POPLA appeal code xxxxxx. I am not liable for the parking charge on the grounds stated below, and I respectfully ask that all points are taken into consideration.

1) Secure-A-Space have failed to establish keeper liability
2) This charge is not a contractually agreed fee
3) Contract with Landowner
4) Inadequate Signage
5) Charge not a genuine pre-estimate of loss

1) Secure-A-Space have failed to establish keeper liability
The Notice to Keeper is not compliant with POFA 2012. The NTK is dated 30/07/2015 and received on 01/08/2015, with the alleged breach of contract said to have occurred on the 30/05/2015, 61 days before. This means the NTK was issued outside the relevant period of 28 days following the period of 28 days of the notice being given to the driver, as specified by Schedule 4 paragraph 8 (5), and therefore keeper liability is not established.

2) This charge is not a contractually agreed fee
Secure-A-Space has not made clear the basis of their charge. Having visited the site, it appears they may be claiming the charge is a contractually agreed sum which I dispute.

If this charge was a contractually agreed fee the sign would be worded to offer various durations of parking at various costs. In addition a payment mechanism would have been provided on-site and a VAT invoice supplied. This is not the case here.

The signage indicates that parking for over 24 hours attracts a £100 charge and, as no limits are specified, this could be the same price for 10 minutes, 10 weeks or indeed 10 years.

In addition no VAT invoice has been provided and I have no evidence that this business operation on this car park has been registered for business rates.

Despite what the sign attempts to say, it is not an offer to park for a fee and it is clear that the true and predominant purpose of the alleged 'parking operation' is to deter breach and, in the absence of evidence that this charge is a genuine pre estimate of loss, it is an unrecoverable penalty.

In a recent ruling at Luton Crown Court 2014 (Civil Enforcement Ltd v McCafferty) the judge ruled that the sum quoted on the sign was not a genuine offer to park at that price, but its main purpose was to deter. It was, therefore, a penalty dressed up as a contractual term, and not recoverable.

In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, there is the classic statement, in the speech of Lord Dunedin, 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”.

It would normally be for the owner to claim for loss which is nothing as there are no fees for using this car park and there was no damage or obstruction caused (nor is any being alleged). It is unfair to attempt to make a party pay excessively for an event that would normally be 'breach of contract'.

I require Secure-A-Space to provide a VAT invoice and proof that this chargeable regime at this location is registered for business rates.

3) Contract with Landowner
Secure-a-space does not own the land in question and has provided no evidence 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 provides 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.

Should a basic contract be produced mentioning 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.

4) Inadequate Signage – not compliant with the BPA Code of Practice section 18, appendix B
The alleged parking event took place at night. Due to the position of signage, the lack of signage frequency, the barely legible size of the small print and minimal lighting the signs and any core parking terms Secure-A-Space are relying upon are too small for a driver to read and well-nigh illegible at night.

The Operator needs to show evidence and signage map/photos on this point - specifically showing the height and lighting 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 drive in. 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. I require Secure-A-Space to provide contemporaneous photographic evidence that proves otherwise.

It is the will of Parliament following the EU Consumer Rights Directive that express consent is obtained for consumer contracts (not implied consent) and that information is provided in a durable medium in advance.

I contend that the signs on this land (wording, position, frequency, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]).

Based on the signage in this residential area, Secure-A-Space has failed to meet these requirements.
I have taken photographs myself today 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.

5) Charge not a genuine pre-estimate of loss
If the sum is sought as damages for breach of contract then under established contract law it must be shown to be a genuine pre estimate of loss arising from the breach.

The parking area is free and there was no damage or obstruction caused (nor is any being alleged). I submit that on a residential parking area there can be no loss arising from any alleged overstay.

The demand for £100 is punitive, unreasonable, exceeds an appropriate amount, has no relationship to the loss that would have been suffered by the Landowner, and is therefore an unenforceable penalty. Furthermore, it exceeds the BPA’s own Code of Practice.
The BPA Code of Practice states:
19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.

The appellant requires Secure-a-space to provide a detailed breakdown of how the amount of the charge was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimates of loss.

POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.

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 charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in Parking Eye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.

Yours faithfully,