A standard private parking ticket with a twist...

noreeztocomplain

Thank you!

noreeztocomplain

Right, I think I've finished my POPLA appeal.

I've adapted previous letters by users on here, and added sections and clauses on my own based on findings in the BPA COP, amongst other things.

If somebody could proof-read it, I'd appreciate it! Hoping to send it off today.

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Re:Vinci Park Services UK Ltd, PCN No. xxxx

xx/xx/2015

POPLA Code: xxxxxxx

VRN: xxxxxx

I am the keeper of this vehicle and this is my appeal.

On the above date, the a Notice To Keeper was issued quoting that the vehicle in question was “Parked without displaying valid permit”. This charge has been contested by myself with debt collection company ZZPS, who are operating on behalf of Vinci Park. After my initial appeal, I was contacted on two separate occasions my ZZPS without them formally rejecting it (the second of which doubled the payable balance to £120 even though they had responded to my appeal without rejecting it). This prompted me to get in touch with the BPA, who corrected the matter and managed to get me a POPLA code from Vinci/ZZPS. This code then did not work when entered into POPLA’s website, causing me to contact the BPA once more who instructed that while the code was in fact valid, the POPLA website is not functioning properly, hence this appeal being slightly outside of the 28 days allowed. All relevant paperwork and correspondence has been attached.

I contest the charge and request it is dismissed on the following grounds:

1. A non-compliant Notice to Owner (or keeper) – no keeper liability established under POFA2012.

2. No genuine pre-estimate of loss

3. Vinci Park Services have formed no contract with the driver (no consideration/acceptance)

4. Lack of standing/authority from landowner to issue tickets or pursue charges in their own name at court

5. Signage non compliant with the BPA Code of Practice

6. Unfair terms

7. Multiple breaches of the BPA Approved Operator Scheme
Code of Practice

NON-COMPLIANT NOTICE TO KEEPER - NO KEEPER LIABILITY ESTABLISHED UNDER POFA 2012

As the owner, I have not named the driver of the above vehicle or provided a serviceable address for the driver of the vehicle. As the registered keeper of the vehicle, I can only be held liable for the parking charge if the relevant provisions of Schedule 4 of the Protection of Freedoms Act 2012 have been satisfied. The Notice to Keeper dated 10th March 2015 fails to comply with POFA2012 Schedule 4 on at least 3 specifics.

1. It fails to comply with Para 8(2)(a) of the Act.

Para 8(2)(a) states that a notice must:
“…specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”

The Notice does not state the period of parking, merely the date of the alleged contravention and charge issue.

2. It fails to comply with Para 8(2)(g) of the Act.

Para 8(2)(g) states that a notice must:

“inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;”

The Operator’s Notice merely informs the owner that a previously extant discount period has expired. The owner was never informed of this discounted period and the notice makes it apparent that such discounted period that may have existed is not available to the keeper.

3. It fails to comply with Para 8(7) of the Act.

Para 8(7) of the Act states that:
“When the notice is given it must be accompanied by any evidence prescribed under paragraph 10”

Whilst the Notice does state that a “Parking Charge Notice was fixed to the vehicle and detailed above” it provides no evidence at all with the Notice. Para 8(7) is clear; the Notice must include such evidence as required by Para 8(10). The burden of proof is upon the operator and I challenge the Operator to provide clear unequivocal evidence that Para 8(10) of the Act does not require their Notice to provide and include evidence as per Para 8(7).

The Notice to Keeper does not comply with the strict requirements of POFA2012 Schedule 4 and no keeper liability exists.

2) NO GENUINE PRE-ESTIMATE OF LOSS
The demand for a payment of £60 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could possibly have been suffered by the Landowner or the Operator.

Vinci Park Services must therefore be required to explain their charge by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so Vinci Park Services have no cause of action to pursue this charge.

In my original appeal letter, I was courteous enough to provide a breakdown of all the costs incurred by myself throughout the course of appealing this parking charge. Vinci Park Services have failed to provide similar information for costs they have incurred, simply stating that the charge is in line with BPA guidelines and therefore “deemed reasonable”. As a result, they have failed to demonstrate that the whole charge is a genuine pre-estimate of loss. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge can “cannot be punitive or unreasonable”.

I put it to Vinci Park Services to prove that a loss has occurred at the time that this charge was levied and Vinci Park Services submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach, such that the charge is a genuine pre-estimate of loss. Seeing as the Notice To Keeper did not specify how long the vehicle was parked for, it is not possible to give a genuine pre-estimate of loss. Having personally checked out the signage at the car park in question after receiving the notice, I calculated even if the vehicle had been parked for an entire day for the entire length of the car park’s operating hours, the loss incurred by Vinci would be no more than £8.80.

I find that the operator has not provided evidence of an initial loss, which is a loss incurred prior to enforcement action being taken, such as the loss of the parking fee in the case of a pay and display car park where no ticket was purchased.

The parking charge must be an estimate of reasonable losses in order to be enforceable. Accordingly, any consequential loss must be based on an initial loss, and any heads claimed for must be in the reasonable contemplation of the parties at the time of issue of the parking charge notice.

Once such a loss is shown, actual losses flowing from it may be claimed, but without such a loss that is not the case. Whilst the losses stated by the operator may well flow from a breach, an initial loss must be shown in order to claim costs in respect of them.

As an initial loss must be shown in order for a charge to constitute a genuine pre-estimate of loss, the operator has failed to show that the charge is a genuine pre-estimate of loss. Therefore I feel the charge notice is invalid.

3) VINCI PARK SERVICES HAVE NO CONTRACT WITH THE DRIVER OF THE VEHICLE; no consideration nor acceptance has flowed between the parties so the elements of a contract do not exist. The issue of a staff parking permit and parking privileges is strictly between the employer and staff member and is the only extant contract relating to parking this car on this site by this driver. Despite what they may say, Vinci cannot re-offer the same parking space on different terms and allege a charge is due when there has been no loss suffered and the driver is permitted to park there. Vinci signs in this car park are sparse and unclear, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance. A lack of signs at the entrance to a car park, and unclear wording, is a breach of the BPA Code of Practice and creates no contract.

Vinci Park Services Ltd 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 for the Operator. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.


4) LACK OF STANDING/AUTHORITY FROM LANDOWNER TO ISSUE TICKETS OR PURSUE CHARGES IN THEIR OWN NAME AT COURT

Vinci Park Services have no proprietary interest in the land concerned and have not responded to a request for a copy of the contract with the landowner in which authority to pursue outstanding parking charges is set out in section 7.2 paragraph (f): “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed. In the absence of this evidence, I believe that Vinci Park Services do not have the legal capacity to enforce such a charge.

I require the non-redacted landowner contract including any payments made between the parties, names & dates & details of all terms included. I suspect Vinci Park Services are merely an employed site agent and this is nothing more than a commercial agreement between the two parties. There is nothing that could enable Vinci Park Services to impact upon visiting drivers in their own right, for their own profit. For the avoidance of doubt, I will not accept a mere “witness statement” or site agreements instead of the relevant contract, 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. There would be no proof that the alleged signatory can act on behalf of the landowner or has ever seen the relevant contract. Also a letter or statement would fail to show any payments made between the parties, and would omit dates & details of all terms in the actual contract - and so would fail to rebut my appeal point about the Operator's lack of standing & assignment of any rights.

5) SIGNAGE NON COMPLIANT WITH THE BPA CODE OF PRACTICE
Upon receiving the Parking Charge Notice, I, as keeper of the vehicle, have since visited the site and argue the following :

5.1) I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B.. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because Vinci Park Services are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) 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) Vinci Park Services have no signage with full terms which could ever be read at eye level, for a driver in moving traffic on arrival. The signs on entry are up on poles with the spy cameras attached and these cannot be read by a driver in their vehicle entering the car park. Stopping the vehicle before entering the car park to get out and read these is completely infeasible as this would cause an obstruction on a public highway and block the entrance to the car park.

5.2) A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. In this case, the driver did not see any sign, thus, there was no consideration/acceptance and no contract agreed between the parties.
As a POPLA Assessor has said previously in an adjudication:
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.
Vinci Park Services needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA Assessor would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding.

6) UNFAIR TERMS
The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘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.’

Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair”
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.”
5(1) ''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. (2) 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.''

From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'

I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss.
I therefore respectfully request that my appeal is upheld and the charge is dismissed on the reasons I have stated in this appeal.

7.) Multiple breaches of the BPA Approved Operator Scheme
Code of Practice

Throughout multiple pieces of correspondence received from ZZPS, they have breached the BPA’s code of practice in numerous ways.

7.1. It fails to comply with section 22.2 of the code of practice:

“Whenever you issue a parking charge notice you must tell drivers about the arrangements for resolving complaints, challenges or appeals.These include:
• your procedures for dealing informally with challenges by the driver about the parking charge notice or any matter in it
the arrangements for independent appeal to POPLA”
ZZPS only provided me with a POPLA code on their fourth time contacting myself, after repeatedly asking the BPA to investigate the matter. The original Notice To Keeper, following emails, and debt recovery letters make no mention of POPLA whatsoever.
7.2. It fails to comply with section 22.6 of the code of practice:
“When you receive a challenge about the issue of a parking charge, you must stop work on processing the charge immediately. You must not increase the charge until you have replied to the challenge.”

I initially appealed against the Notice To Keeper letter on the 24th of March, receiving a reply via email on the 31st of March which failed to reject the appeal. I then received another letter in the post on the 9th of April stating that the balanced owed had increased to £120. After significant probing with the BPA, the letter in which ZZPS both rejected the appeal and provided the POPLA code did not arrive until the 17th of April. The balance owed on the letter in question was lowered back to the original value of £60, which I viewed as an attempt to back-pedal because ZZPS knew that changing the amount due would not sit well if I were to appeal to POPLA.

7.3. It fails to comply with section 22.12 of the code of practice:
22.12 !If you reject a challenge you must:
• give the driver a reasonable amount of time to pay the charge before restarting the collection process. We recommend that you allow at least 35 days from the date you rejected the challenge.
ZZPS officially rejected my initial appeal letter on the 17th of April, and just this morning (18th of May) I received a letter asking once more for the £60 they originally were asking for. This is less than 35 days, and a clear breach of the code of practice.

With all of the above considered, I hope you grant my appeal.

Kind regards

xxxxxxx

Coupon-mad

That's fine. You'll win on 'no keeper liability' as long as in the first appeal nothing was given away about who parked.

No need for point 7 at all.

noreeztocomplain

Coupon-mad wrote: »

That's fine. You'll win on 'no keeper liability' as long as in the first appeal nothing was given away about who parked.

No need for point 7 at all.

Thank you so much.

I've got pictures of all email correspondence with the BPA and ZZPS, all letters from Vinci/ZZPS and also pictures of the signage. What is worth attaching?

Redx

anything that proves your case, ie:- your own evidence

no need to give popla any of the other paperwork unless it proves your case in an evidential fashion , leave the vinci and zzps stuff to the "other side"

noreeztocomplain

Redx wrote: »

anything that proves your case, ie:- your own evidence

no need to give popla any of the other paperwork unless it proves your case in an evidential fashion , leave the vinci and zzps stuff to the "other side"

Thanks once again, I've just sent it off now.

noreeztocomplain

Ok, in need of assistance now.

I've had an email from POPLA saying that my appeal was outside of the 28 day period, even though I have it in writing from the BPA that the POPLA website was not working as it should be, which stopped me from submitting it until I discovered that they had an email address.

Any advice?

ManxRed

A complaint to the Lead Adjudicator, along with a copy of the BPA correspondence.