POPLA Appeal OPC in Residential Flats

Keir4130

Hi All,

Situation: I parked at my friends flat at night in the car park and got up the next day to find a parking ticket on my windscreen. There are no visible signs in the immediate area near where I parked but I found some on an opposing block of flats... The signs are unlit so I feel that is the strongest reason for an unfair ticket... Irrespective of that I have posted below my draft POPLA appeal, I stupidly emailed the parking company complaining about the ticket before I found this forum :-(

Any thoughts on additional/amended wording greatfully received. I found a template and mostly just amended the inadequate signage section. Thanks, Keir

I can't post the pic links properly but the httZ just needs udpatting to http;

Picture A: <a href="httZ://tinypic.com?ref=fz9s74" target="_blank"><img src="httZ://i62.tinypic.com/fz9s74.jpg" border="0" alt="Image and video hosting by TinyPic"></a>

Picture B: <a href="httZ://tinypic.com?ref=2ntz7dh" target="_blank"><img src="httZ://i60.tinypic.com/2ntz7dh.jpg" border="0" alt="Image and video hosting by TinyPic"></a>


DearPOPLA Assessor,

As the registered keeper of vehicle registration XXXX XXX, I am appealingagainst parking charge number XXXXXXX using POPLA appeal code XXXXXX. I am notliable for the parking charge on the grounds stated below, and I respectfullyask that all points are taken into consideration.

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

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

OPC have not made clear the basis of their charge. Having visited the site, itappears they may be claiming the charge is a contractually agreed sum which Idispute.

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 offervarious durations of parking at various costs. In addition a payment mechanismwould have been provided on-site and a VAT invoice supplied. This is not thecase here.

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

Despite what the sign attempts to say, it is not anoffer to park for a fee and it is clear that the true and predominant purposeof the alleged 'parking operation' at (RussellCourt, Blackboy Wood, Bricket Wood, St Albans) is to deter breach and, in theabsence of evidence that this charge is a genuine pre estimate of loss, it isan unrecoverable penalty.

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

In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and MotorCompany [1915] AC 79, there is the classic statement, in the speech of LordDunedin, that a stipulation: “… will be held to be a penalty if the sumstipulated for is extravagant and unconscionable in amount in comparison withthe greatest loss which could conceivably be proved to have followed from thebreach”.

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

I require OPC to provide a VAT invoice, details of the daily rates of parkingand proof that this chargeable regime at this location is registered forbusiness rates.

b) Charge not a genuine pre-estimate of loss

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

The parking area is free and there was no damage or obstruction caused (nor isany being alleged). I submit that on a residential parking area there can be noloss 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’sown 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 abreach of contract or act of trespass, this charge must be based on the genuinepre-estimate of loss that you suffer.
19.6 If your parking charge is based upon a contractually agreed sum, thatcharge cannot be punitive or unreasonable.
The appellant requires OPC to provide a detailed breakdown of how the amount ofthe charge was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost ofrunning the business may not be included in these pre-estimates of loss.

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


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

2)OPC havefailed to establish keeper liability

OPC have failed to serve a Notice to Keeper. It has been completely omitted, OPCappear to have assumed it is not needed when a keeper sends reps against awindscreen ticket. But in the schedule it is clear that a NTK is a fundamentaldocument where the Operator does not know who the driver was. ThereforeSecure-a-space have failed to establish keeper liability by forgetting the NTK.

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

3)Contractwith Landowner

OPC does not own the land in question and has provided no evidence they arelawfully entitled to demand money from a Driver or Keeper. They own neitherproprietary nor agency rights and hold no title or share of the land. I do notbelieve that they have the necessary legal capacity to enter into a contractwith a Driver of a vehicle parking there or to allege a breach of contract intheir own name as creditor. I believe that at best they may hold a site agreementlimited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of theactual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA code of practise, this contract must specificallygrant the Operator the right to pursue parking charges in their own name ascreditor, please note that a witness statement such as a signed letter to theeffect that such a contract exists will be insufficient to provide all therequired information and therefore be unsatisfactory for the following reasons;

a) Some parking companies have provided 'witness statements' instead of therelevant contract. There is no proof that the alleged signatory has ever seenthe contract nor that they are employed by the Landowner. Such a statementwould not show whether any payment has been made to the Operator which wouldobviously affect any 'loss' calculations. Furthermore it would not serve toprovide proof that the contract includes the necessary authority required bythe BPA Code of Practise to allow the Operator to pursue charges in their ownname as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witnessstatement was 'not valid evidence'. If the Operator provides a witnessstatement merely confirming the existence of a contract but no unredacted copyof that contract then POPLA should rule this evidence invalidin the interests of fairness and consistency.

Should a basic contract be produced mentioning parking charge notices, the lackof ownership or assignment of title or interest in the land reduces anycontract to one that exists simply on an agency basis between the Operator andthe Landowner containing nothing that the Operator can lawfully use in theirown name as mere agent that could impact on a third party customer. I thereforerespectfully request that my appeal be upheld and the charge dismissed.

I would remind the Operator of their obligation to provide the Appellant with acopy of any evidence provided to POPLA as requested sent with sufficienttime for consideration and rebuttal.

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

4)InadequateSignage

a) There were no signs in the immediate area of parking. See Picture A of wherecar was parked.

b)Parking signage has been removed in the area near the car. See Picture B.Without appropriate signage a driver cannot be aware of the parking terms

c)The signage on the opposing block of flats was unlit and impossible to see norread at night when the ticket was issued. Without lit signage it is impossiblefor drivers to be aware of parking terms.

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

Yours faithfully,
wxyz

The_Deep

As you are claiming that this is a bogus contractual charge you might like to read the v.a.t. position of these devices.

https://forums.moneysavingexpert.com/discussion/5087925=

https://forums.moneysavingexpert.com/discussion/5033796=

If their NTD/NTK makes no mention of v.a.t. you can use that against them, (every little helps).

Wait, there is more

http://www.expressandstar.com/news/2011/03/31/26000-fine-for-parking-firm/

Keir4130

The VAT part was from a template letter that I found which seemed to fit my situation... I'm not quite clear from those threads if it's a good or a bad thing to include but will leave it there as long as it doesn't do any harm to the appeal???

Cheers, Keir

Keir4130

Just in case anyone searches on this, my appeal was allowed so good news :beer:. Reasons below:

It is the Appellant’s case that the parking charge notice was issued incorrectly.

The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.

Accordingly I have no option but to allow the appeal.

The_Deep

Hardly surprising

http://www.expressandstar.com/news/2011/03/31/26000-fine-for-parking-firm/