CP Plus - Motorway Service Area - Roadchef

Mexicano_2

Hello All,

I have received a private parking ticket from CP Plus, for exceeding the two hour limit at a Motorway Service Area. The overstay was less than one hour.

I have responded to the Charge Notice from CP Plus, and have received a POPLA reference number.

I intend to appeal to POPLA using the CP Plus appeal template posted by Coupon-mad, updated 01-11-2014.

I hope you can help me with some questions.


Question 1:

There are certain parts of the appeal template that I don't have the knowledge to judge whether they are applicable in my case. Consequently, I don't know if it is wise to include these elements in my appeal.

Should I only include the parts of the template that I am sure are applicable in my case, or is it acceptable to include all parts of the template, even if it turns out some parts are inapplicable, or even incorrect, in my case.

Naturally, I will exclude any sections of the appeal template that I believe to be incorrect.


Question 2:

I read in the forum that there is a character limit for an online POPLA appeal.

Do you know whether an appeal based on the CP Plus appeal template is within the character limit, or will the appeal need to be submitted by post?


Question 3:

The phrase 'Notice to Keeper' does not appear in the Charge Notice from CP Plus.

Is the 'Charge Notice' the 'Notice to Keeper', or should I have received a letter entitled 'Notice to Keeper'?

The ticket was from an ANPR camera. There was no windscreen ticket.


Question 4:

Forum leaders frequently advise not to include mitigating circumstances in appeals, so I am hesitant to mention the following...

There was heavy fog on the night of the ticket, making parking signs harder to see. At a nearby airport (less than twenty miles away), they were diverting flights due to the extreme fog.

Should I mention this in the section on signage, or not?


Alteration to Appeal Template - 1:

1. The charge is not a genuine pre-estimate of loss.
£90 is a sum 'plucked out of the air' by the Operator and it bears no relation to any loss. My proposition is that £90 was chosen because it happens to be just below the maximum figure the BPA feel is a 'tolerable' amount to impose on motorists...


Alteration to Appeal Template - 2:

The NTK fails due to the following reasons:

(C) It fails to describe any alleged unpaid parking charges “for the specified period of parking” (a period which was not specified)...

Section above in red to be removed. The duration was specified.


Many thanks for your assistance.

Fruitcake

Question 1:

There are certain parts of the appeal template that I don't have the knowledge to judge whether they are applicable in my case. Consequently, I don't know if it is wise to include these elements in my appeal.

Should I only include the parts of the template that I am sure are applicable in my case, or is it acceptable to include all parts of the template, even if it turns out some parts are inapplicable, or even incorrect, in my case.

Naturally, I will exclude any sections of the appeal template that I believe to be incorrect.

Include all the appeal points. It is up to the PPC to prove they do not apply, not you. Don't overthink it.


Question 2:

I read in the forum that there is a character limit for an online POPLA appeal.

Do you know whether an appeal based on the CP Plus appeal template is within the character limit, or will the appeal need to be submitted by post?

If there is a character limit then just trim it down until it will fit. Any vitriol or waffle can be deleted as long as the main points are kept.

Question 3:

The phrase 'Notice to Keeper' does not appear in the Charge Notice from CP Plus.

Is the 'Charge Notice' the 'Notice to Keeper', or should I have received a letter entitled 'Notice to Keeper'?

The ticket was from an ANPR camera. There was no windscreen ticket.

The term NTK is generic. Just appeal as keeper or registered keeper.

Question 4:

Forum leaders frequently advise not to include mitigating circumstances in appeals, so I am hesitant to mention the following...

There was heavy fog on the night of the ticket, making parking signs harder to see. At a nearby airport (less than twenty miles away), they were diverting flights due to the extreme fog.

Should I mention this in the section on signage, or not?

The signs must be placed so they can be seen from a moving car, that's all. The keeper didn't see them, that's all you need to put.


Alteration to Appeal Template - 1:

1. The charge is not a genuine pre-estimate of loss.
£90 is a sum 'plucked out of the air' by the Operator and it bears no relation to any loss. [STRIKE]My proposition is that £90 was chosen because it happens to be just below the maximum figure the BPA feel is a 'tolerable' [/STRIKE][STRIKE]
amount to impose on motorists...


[/STRIKE]





I wouldn't bother with that. It is an opinion not a fact which not a GPEOL is.


Alteration to Appeal Template - 2:

The NTK fails due to the following reasons:

(C) It fails to describe any alleged unpaid parking charges “for the specified period of parking” (a period which was not specified)...

Section above in red to be removed. The duration was specified.


Many thanks for your assistance.

Redx

1) use them anyway, its their job to prove their own case, in all aspects

2) ATTACH your popla appeal online, in the box put a small opening paragraph with the bullet points, then put SEE ATTACHMENT FOR THE FULL APPEAL

3) there are various names they choose for it, doesnt matter too much, its an invoice actually

4) always include signage and question it, again its their job to prove it is sufficient and complies , if there was fog , mention it, if they wish to exclude it as mitigation, thats their problem

Mexicano_2

Hello All,


Thanks for your help so far.


I have written my POPLA appeal, and was hoping one of the forum experts would have a look at it before I submit it.


Should I post it here, or is that not recommended? Most of my circumstances are pretty standard, but there is one section which would immediately identify me to the PPC, were they to read it here. Does that matter?


Many thanks.

Redx

post it all apart from the popla number, VRN number, pcn number , name and address etc , BUT not that additional info part that identifies you

if the vast majority of it is suitable for popla, then any added section is additional for popla eyes only and can be included in the actual appeal

bear in mind the PPC will see this appeal anyway, as popla will send it to them, so its only identifying you on here if you post personal info etc

bod1467

Which MSA was this? (All responses thus far have assumed the event took place in England or Wales, and that the RK resides in England or Wales).

Mexicano_2

bod1467:

Yes, the event took place in England, and the RK resides in England.

Mexicano_2

Hello All,

Below is my draft POPLA Appeal (Draft 1).

Please advise me or any important changes or additions I should make to it.






POPLA reference number: xxxxxxxxxx

As the Registered Keeper of the vehicle, I appeal the parking charge on the following grounds:

1. The charge is not a Genuine Pre-estimate of Loss.
2. Unclear and non-compliant signage. No contract created with the Driver.
3. ANPR records are not proof of one parking event, and do not show duration of parking.
4. Unfair contact terms under the Unfair Terms in Consumer Contracts Regulations 1999.
5. The Operator has no standing or authority to form contracts with motorists.
6. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (POFA).


1. The charge is not a Genuine Pre-estimate of Loss.

The car park is free to use for two hours, followed by a charge of £12 for the next 24 hours.

CP Plus claims the vehicle was parked for 2 hours and 39 minutes. If that had been the case, the maximum loss the Landowner would have suffered from unpaid parking is £12. Any genuine pre-estimate of loss could only arrive at this figure.

CP Plus claims a loss of £90. I require that CP Plus demonstrates precisely how this ‘loss’ figure was arrived at. I require that they clearly demonstrate how each of the elements of their ‘loss’ figure meets the legal requirements to be considered a genuine pre-estimates of a ‘loss’ of this type. CP Plus cannot lawfully include their normal operating costs in a pre-estimate of loss, eg their costs in enforcing parking restrictions at the site, as such costs do not represent a loss resulting from a breach, as, were no breach to have occurred, their costs would have been the same. This principle has been repeatedly stated by POPLA in adjudication.

I require CP Plus to produce documentary evidence showing precisely when this pre-estimate of loss was calculated, and when the Landowner agreed that this amount represented a genuine pre-estimate of loss. I require CP Plus to show that these dates were prior to setting the parking charges at this site.

I contend that the £90 charge is not commercially justified. At the time of the claimed loss, 10pm on a Sunday night, the car park was well under 50% capacity. There can have been no loss of business resulting from potential customers being unable to park.

I contend that the figure of £90 has been chosen as it is just below the maximum amount the BPA feels is a tolerable amount to impose on motorists. The BPA has admitted to the Government that the basis of their maximum charge is Council PCNs. If the BPA maximum charge is based on Council PCNs, then the figure is not a genuine pre-estimate of loss.

The fact that CP Plus have offered to discount the £90 charge by 44% for early payment leads to the inescapable conclusion that £90 is an arbitrary, punitive figure, and not the amount of a genuine loss they need to be compensated for.

I contend that this charge is not a genuine pre-estimate of loss. I contend that the £90 charge is an ‘in terrorem’ sum to deter breach and as such is a penalty, and therefore void, and unenforceable against me.


2. Unclear and non-compliant signage. No contract created with the Driver.

The Driver did not see any parking signs at this car park.

A contract between CP Plus and the Driver could only be formed at the entrance to the site, prior to parking, when the driver is in a position to decide whether or not to enter the car park.

There is only one parking sign located at or before the entrance to the car park. This sign is located on a tight bend which requires the full attention of the driver. The sign is also located at the exact point where written directional road markings require the driver to immediately decide which direction to take. There is no possibility of a driver reading the small print on a parking sign while focusing on these driving imperatives. I contend that by placing the only entrance sign on a tight bend, where it would patently be dangerous to stop to read the full parking terms, CP Plus are in breach of the BPA Code of Practice Appendix B which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead.

CP Plus’s entrance sign is located in a position where it is surrounded by numerous other signs. Within 15 metres of the CP Plus sign there are nine signs; traffic signs, speed signs, lane direction signs, information signs, advertising signs and written road markings. The CP Plus sign has been positioned in the middle of these. In addition, the print size of the parking terms on CP Plus’s sign is by far the smallest of all the information appearing on any of these nine signs, making it the least likely to be noticed by the driver. The small print size means the parking terms could only be read when standing directly in front of the sign.

I contend that by locating the only entrance sign in a position where it is too dangerous to stop to read the sign, in a position exceptionally cluttered with competing information, with a volume of terms and conditions that is impossible to read while driving in moving traffic, and in a print size that is the smallest of all nearby signs, CP Plus has failed to provide terms sufficiently prominent that they ‘must’ have been seen, read and agreed to by the Driver.

Parking signs within the car park are sparsely located. There are many parking spaces within this large car park from which no parking sign can be seen. As a driver may never leave their vehicle whilst parked, I contend that if no sign is clearly legible from their specific parking space, it cannot be claimed that a driver ‘must’ have read the terms on a sign. I require CP Plus to provide evidence that my vehicle was not parked in one of the many parking spaces from which a sign cannot be seen or read.

The parking signs within the car park are far smaller than any of the other signs in the car park competing for a driver’s attention. The parking signs are printed on a dull background, with no strong colours or large print to attract a driver’s attention. The signs are positioned one to two metres above eye level, and the print size used on the signs is so small that it is unreasonably difficult to read even when standing directly in front of a sign. In addition, the car park is not sufficiently lit at night to bring these signs to a driver’s attention. These factors combine to make the signs difficult to notice and difficult to read. I contend that the poor lighting, the size of the signs, the height of the signs, the colour scheme of the signs, and the print size means it cannot be claimed that the signs are so prominent they ‘must’ have been seen and read by the Driver.

The alleged breach occurred on a night when there was heavy fog in the area. In evidence of this, at the time of the alleged breach, Gatwick Airport (13 miles away) was diverting and cancelling flights due to the extreme fog. I therefore require that CP Plus provide documentary and photographic evidence showing they have undertaken tests to ensure that the signs they are relying on can be clearly seen and read from any parking space within the dimly lit car park, on a dark night, during heavy fog. I contend that if no adequate tests have been undertaken, CP Plus cannot claim their signs ‘must’ have been seen and read in these conditions.

I contend that any parking sign within the car park cannot be claimed to establish terms of a contract with the Driver, as such signs are not available for a driver to see until they have already entered the car park.

I contend that for the reasons set out above the signage at this Motorway Services Area is not in compliance with the BPA Code of Practice Section 18 and Appendix B.

I contend that the information set out above clearly shows that the signs CP Plus are relying on were not sufficiently prominent or legible that the Driver ‘must’ have seen, read, understood and agreed to their terms. Terms set out on a sign are not imported into a contract unless brought home so prominently that the party 'must' have known and agreed to them. Nothing about these signs, or the terms set out in them, was sufficiently prominent.

I contend 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 in this case.

The Driver is a law abiding citizen, who has never been accused of any criminal or civil offence. In thirty years of driving they have never even received a parking ticket. If a parking sign had been seen by the Driver, it’s terms would have been complied with.


3. ANPR records are not proof of one parking event, and do not show duration of parking.

The Driver does not believe they parked at this site for longer than the two hours free parking.

The charge by CP Plus is founded entirely on two photographs of the vehicle entering and leaving the Motorway Services Area. If CP Plus wish to rely on these photographs, I require them to provide proof that the two photographs are not the result of two separate visits to the Motorway Services Area. I require CP Plus to provide documentary evidence from a suitably qualified, independent specialist in this technology, certifying that it is not possible that a vehicle entering or leaving the site could be absent from CP Plus’s records due to, for example, the vehicle not being recorded by the camera, the registration number of the vehicle not being legible in the photograph, or any other failure of the system.

The exit camera at this site is located at the exit of the service station, not at the exit of the car park. Therefore, the photograph shows the vehicle leaving the service station, some time after leaving the car park.

CP Plus allege the vehicle overstayed the free parking limit by 39 minutes. However, the location of the exit camera means the alleged entry and exit times show the combined time spent in the car park and in the service station. Time spent in the service station is not time spent parked.

The alleged 2 hours 39 minutes therefore includes any time the Driver spent in the service station undertaking any or all of the relevant tasks: queuing for a fuel pump, refuelling, queuing for the air hose, checking tyre pressure, refilling radiator water, cleaning the windscreen, using the toilet facilities, preparing and drinking a hot drink, eating a snack, perusing and selecting items sold in the service station shop, and queuing and paying for the above.

I contend that CP Plus have failed to provide evidence that the vehicle was parked in this car park for a period exceeding two hours. I put CP Plus to strict proof of actual parking for a period exceeding two hours.

I require CP Plus to provide full evidence that their ANPR camera system is in full compliance with the BPA Code of Practice and all relevant legal requirements for CCTV data collection.


4. Unfair contact terms under the Unfair Terms in Consumer Contracts Regulations 1999.

There is no contract between CP Plus and the Driver, but even if there was a contract the charge that was 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 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’. Regulation 5(2) states: ‘A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’

I therefore put CP Plus to strict proof that their charge is not in breach of Unfair Terms in Consumer Contracts Regulations 1999.


5. The Operator has no standing or authority to form contracts with motorists.

CP Plus has not provided me with any evidence that they are lawfully entitled to demand money from a driver or keeper in connection with parking at this site.

CP Plus does not appear to have any ownership interest in the car park, so I contend they have no legal standing to enter into a contract with a driver in their own right, nor any legal standing to pursue charges for breach in their own name. As an agent only, CP Plus has no automatic standing or authority which would meet the strict requirements of section 7 of the BPA Code of Practice.

If CP Plus wish to rely on a contract with the Landowner to claim authority to demand money from me, I must have the opportunity to examine that contract.

I therefore require CP Plus to provide an un-redacted, contemporaneous, signed and dated copy of the contract between CP Plus and the Landowner, which, to demonstrate standing and authority, must specifically state that CP Plus has the right to make contracts with drivers in their own name, that they have full authority to pursue charges through to court in their own name, and that the Landowner allows CP Plus to charge £90 for a parking contravention. A witness statement to the effect that a contract is in place, which could be signed by someone who may never have seen the actual contract, will not be sufficient because it will not show the terms and conditions relating to the Operator’s authority, nor any restrictions that are in place.

If CP Plus wish to rely on any such contract, I require them to show, on a point-by-point basis, that the contract is in complete compliance with all the requirements set out in the BPA Code of Practice.


6. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (POFA).

In order to pursue Keeper Liability under the POFA, CP Plus must have met the strict conditions in the Act. However, they have failed to fulfil the requirements of the Notice to Keeper as per Paragraph 9 Schedule 4 of the Act.

The Notice to Keeper is non-compliant under the POFA 2012 for the following reasons:

(A) The period of parking is not specified in the Notice to Keeper, only the times the car was seen in traffic on arrival and on the final time it left that day. There is no evidence of parking at all.

(B) The Notice to Keeper does not inform the Keeper that the Driver is required to pay parking charges in respect of the specified period of parking, and that the parking charges have not been paid in full.

(C) The Notice to Keeper fails to set out any unpaid parking charges for the specified period of parking. POFA requires that a Notice to Keeper describes any unpaid charges which the Driver owed at the time of the issue of the postal Notice to Keeper.

A charge for breach of contract cannot be described as unpaid by the Driver at the time the Notice to Keeper is issued, because it only arises at the time the Notice to Keeper is received. The punitive amount now being pursued for 'breach' should not be confused with the sum intended by Schedule 4 of the POFA. The Act requires any unpaid tariff that the Driver owed before the Notice to Keeper was issued to be stated, and that this is the only sum that can be pursued from a registered Keeper.

(D) The Notice to Keeper does not identify the Creditor. The fact that an Operator's name is on a Notice to Keeper as the payee, does not identify them as the Creditor, as administrative functions such as sending notices and collecting monies can be carried out by other parties. The Creditor has to be identified with words to the effect 'The Creditor is...'.

(E) The Notice to Keeper fails to show the arrangements for complaints. It also fails to show the geographical address of the client/Landowner. This is a requirement for all consumer contracts, as well as being a breach of the POFA.

The requirements of Schedule 4 of the POFA as regards the wording in a compliant Notice to Keeper are prescriptive, unequivocal and a matter of statute, not contract law. Any omission, or failure to set out any of the mandatory wording, means there is no Keeper liability.

In this case the Driver has not been identified, so the failure of CP Plus to meet the conditions to invoke Keeper Liability means there is no legal basis for the charge to be enforced against me as Keeper.




Summary

I contend that this charge fails to meet the requirements set out in paragraph 19 of the BPA Code of Practice, and fails to comply with basic contract law.

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

attatt97

Hi

Your draft appears to be exactly the same as my current situation. Please could you tell me if you were successful?

Thanks in advance

Mexicano_2

Hi Attatt97,

My appeal still hasn't been heard, so too soon to tell you if it is successful.

Good luck with yours...

Umkomaas

Mexicano wrote: »

Hi Attatt97,

My appeal still hasn't been heard, so too soon to tell you if it is successful.

Good luck with yours...

WHAAAT? You submitted that appeal to POPLA in February this year (7 months ago) and you've heard nothing? Something's not right here!