POPLA draft appeal

W800kawa

Hi, could I please have your views on the following draft POPLA appeal? My car was parked in a free car park by some local shops but some of the bays had recently been marked out for local shopkeepers. I was therefore issued a notice to keeper for parking without a permit. I appealed to UKPC but they stonewalled. I am planning to send the following appeal to POPLA this week:




Re: UK Parking Control PCN, reference code xxxxxx
POPLA Code: xxxxxxxxxx

I am the registered keeper and I wish to appeal a recent parking charge from UK Parking Control (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 inadequate so there was no valid contract formed
4) Non-compliant Notice to Keeper
5) Unreasonable/unfair terms
6) No Creditor identified on the Notice to Keeper

• The Charge is not a genuine pre-estimate of loss
  
  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.
  
  The UK Parking Control Notice to Keeper alleges 'breach of terms' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at the nearby shops and cafes if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park was almost empty on arrival and when the driver left.
  
  The British Parking Association Code of Practice uses the word 'MUST'. This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach.
  
  I require UKPC to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.
  
  The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. UKPC cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some woolly statement that merely claims that charges were calculated to compensate UKPC for their “losses”.
  
  
  
  19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable
  
  The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The keeper declares that the charge is punitive and therefore an unenforceable penalty.
• 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. This has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that UKPC merely did hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. 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. This is required so that POPLA and myself can check that it allows this Operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is or was in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.).

• The signage was inadequate so there was no valid contract formed

The occupants of the car recall seeing no signs on entrance to the car park. The last time the occupants visited the car park, all parking spaces were available without restriction.


I require UK Parking Control to state the height and position of each sign in their response and to state when this car park changed from being a free-space car park to a restricted space car park and to show contemporaneous photo evidence of these signs. 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.Therefore, it is their own problem in the drafting and positioning of the signs that customers do not see them at all. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of UK Parking Control and are aware it is a free car park so are not expecting to read a contract.

I believe that it was dark when the driver parked the car. I see that the sign is placed high up and is unlit, so that in darkness no signs are visible and the words are unreadable. I put UKPC to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. There is no entrance sign, no lighting on site and the sign is not prominent, not reflective & placed too high to be lit by headlights. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area.


No consideration/acceptance flowed to and from both parties, so there was no contract formed.

• Non-compliant Notice to Keeper - no keeper liability established under POFA2 2012

On the NTK, the 'period of parking' is not shown, only the time of issue of an alleged PCN. The wording makes this a non-compliant NTK under the POFA 2012, Schedule 4. According to Schedule 4 para 8, the Notice must specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.

The NTK is a nullity so no keeper liability exists.

5) Unreasonable/Unfair Terms


The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states: “18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.” An unlit sign of terms placed too high to read, is far from 'transparent'.

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".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”




6) No Creditor identified on the Notice to Keeper

Failing to include specific identification as to who 'the Creditor' may be, is misleading and not compliant, in regards to paragraph 9(2)(h) of Schedule 4 of the POFA. Whilst the Notice has indicated that the operator requires a payment to be made to UKPP, there is no specific identification of the Creditor, who may, in law, be UKPP or some other party. The POFA requires a ‘Notice to Keeper’ to have words to the effect that 'The Creditor is….' and the Notice does not.




In summary, there are six reasons why I believe I am not responsible for this 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 inadequate so there was no valid contract formed
4) Non-compliant Notice to Keeper
5) Unreasonable/unfair terms
6) No Creditor identified on the Notice to Keeper





I request that my appeal is allowed.

Yours faithfully,

Fruitcake

That looks pretty good to me, but perhaps one of the experts will confirm this in due time. Well done on getting this far without having to ask for lots of help. It really helps the regulars here when posters do their homework first.

DoaM

You don't need the numbered list twice - just at the top is fine.

The body of the appeal only shows some of the numbered items as numbered - the 1st 4 are bullets. Make sure there is consistency.