Vinci Park

Handy_Hubby

Finally got a POPLA code which is valid until 29/06. I've drafted a letter, would anyone be so kind as to check for me? Thanks in advance.

Handy_Hubby

Dear POPLA,
I am the registered keeper & this is my appeal:

1) The Charge is not a genuine pre-estimate of loss
Their sign states the charge is for 'not fully complying with theconditions' so this Operator must prove the charge to be a genuine pre-estimateof loss. There is no loss flowing from this parking event because the car park isfree to use and was not even half full, so even if the vehicle was ‘misusing aparent & child bay’ (which is denied as I am the keeper and it is up toVinci Park to show as much) there was no loss of potential income in a free carpark.

This Operator cannot demonstrate any initial quantifiable loss. The parkingcharge must be an estimate of likely losses flowing from the alleged breach inorder to be potentially enforceable. Where there is an initial loss directlycaused by the presence of a vehicle in breach of the conditions (e.g. loss ofrevenue from failure to pay a tariff) this loss will be obvious. An initialloss is fundamental to a parking charge and, without it, costs incurred byissuing the parking charge notice cannot be said to have been caused by thedriver's alleged breach. Heads of cost such as normal operational costs andtax-deductible back office functions, debt collection, etc. cannot possiblyflow as a direct consequence of this parking event. The Operator would havebeen in the same position had the parking charge notice not been issued, andwould have had many of the same business overheads even if no vehicles breachedany terms at all.

2) Lack of signage -no contract with driver

Upon visiting the site, I have seen that the sign of conditions is placedhigh on a wall adjacent to the passenger side of the vehicle. The wording onthe sign is tiny, making the words unreadable to the driver. I put Vinci Parkto prove otherwise, as well as a site map, they must provide photos taken fromthe driver’s side of a vehicle.A Notice is not imported into the contract unless brought home so prominentlythat the party 'must' have known of it and agreed terms. Thedriver did not see any sign; there was no consideration/acceptance and nocontract agreed between the parties.

Unreadable signage breaches Appendix B of the BPA CoP which states thatterms on entrance signs must be clearly readable without a driver having toturn away from the road ahead. This would include the signs beinglit/reflective and repeated throughout the car park, with consistency ofrestrictions throughout.

This concept of clarity is also stated in case law. When giving judgment inThornton vs Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeals, LordDenning stated that this was not “ drawn to his attention in the most explicitway. The customer is bound by those terms as long as they are sufficientlybrought to his notice beforehand, but not otherwise. In {ticket cases of formertimes} the issue...was regarded as an offer by the company. That theory was, ofcourse, a fiction. No customer in a thousand ever read the conditions. In orderto give sufficient notice, it would need to be printed in red ink with a redhand pointing to it - or something equally startling.”

3) Lack ofstanding/authority from landowner
Vinci Park has no title in this land and no BPA compliant landowner contractassigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contractwording. I put Vinci Park to strict proof of the contract terms with the actuallandowner (not a lessee or agent). Vinci Park have no legal status to enforcethis charge because there is no assignment of rights to pursue PCNs in thecourts in their own name nor standing to form contracts with driversthemselves. They do not own this car park and appear (at best) to have a barelicence to put signs up and 'ticket' vehicles on site, merely acting as agents.No evidence has been supplied lawfully showing that Vinci Park is entitled topursue these charges in their own right.

I require Vinci Park to provide a full copy of the contemporaneous, signed& dated (unredacted) contract with the landowner. I say that any contractis not compliant with the requirements set out in the BPA Code of Practice anddoes not allow them to charge and issue proceedings for this sum for thisalleged contravention in this car park. In order to refute this it will notbe sufficient for the Operator merely to supply a site agreement or witnessstatement, as these do not show sufficient detail (such as the restrictions,charges and revenue sharing arrangements agreed with a landowner) and may wellbe signed by a non-landholder such as another agent. In order to comply withparagraph 7 of the BPA Code of Practice, a non-landowner private parkingcompany must have a specifically-worded contract with the landowner - notmerely an 'agreement' with a non-landholder managing agent - otherwisethere is no authority.

4) Non-compliantNotice 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 analleged PCN. Also the NTK completely misinforms the rights of a registeredkeeper to appeal, alleging that the appeal time has 'elapsed' when it has notand wrongly restricting the keeper's options at that stage to appealing only ifthe vehicle was stolen. I have no hesitation is stating to POPLA that this is alie that POPLA should report to the BPA. In addition, the wording makes this anon-compliant NTK under the POFA 2012, Schedule 4.

Schedule 4 para8(1): 'A notice which is to be relied on as a {NTK isgiven} if the following requirements are met. (2)The notice must—
(a)Specify the vehicle, the relevant land on which it was parked andthe period of parking to which the notice relates.
(g)Inform the keeper of any discount offered for prompt payment and‘the arrangements for the resolution of disputes or complaints that areavailable'

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 onUTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparentas to what must be paid and in what circumstances.

A sign of terms placed too high to read, with tiny wording on a passenger sideof a vehicle, is far from 'transparent'.

Schedule 2 of thoseRegulations gives an indicative (and non-exhaustive) list of terms which may beregarded as unfair and includes at Schedule 2(1)(e) "Terms which have theobject or effect of requiring any consumer who fails to fulfil his obligationto pay a disproportionately high sum in compensation." Furthermore,Regulation 5(1) states that: "A contractual term which has not been individuallynegotiated shall be regarded as unfair if, contrary to the requirement of goodfaith, it causes a significant imbalance in the parties' rights and obligationsarising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant tosection 4(1) of the Unfair Contract Terms Act 1977 which provides that: "Aperson cannot by reference to any contract term be made to indemnify anotherperson (whether a party to the contract or not) in respect of liability thatmay be incurred by the other for negligence or breach of contract, except in sofar as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to rely on unlit, non-prominent signs in anattempt to profit by charging a disproportionate sum where no loss has beencaused by a car in a free car park where the bays are not full. I also notethat that Vinci Park charge the same disproportionate sum for any breach oftheir ‘terms’, which again shows this is not a genuine charge. I put thisOperator to strict proof to justify that their charge, under the circumstancesdescribed and with their utter lie about the keeper's right to appeal 'only ifthe car is stolen' in mind, does not cause a significant imbalance to mydetriment and to justify that the charge does not breach the UTCCRs and UCTAct.

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



Yours Faithfully

Redx

seems reasonable to me, dont miss that popla deadline, tick 3 of the 4 boxes and attach the appeal as a word doc or pdf, when you submit it that is

as you have time, wait for any other critique

Handy_Hubby

Thank you Redx

Handy_Hubby

So, my hearing is on 09/07.

I received an email from ZZPS on 02/07 informing me that they have sent 5 seperate emails with their evidence attached.

I replied stating that I have only received the one email, I checked my junk folders and there is nothing in them so I requested they resend the emails which of course, they have not done.

So, I emailed the BPA to complain that I am being denied a fair hearing, they replied very quickly advising me to contact popla which I have done.

Popla has responded stating that the evidence was sent to them on 03/07 and they cannot forward it to me. As my code was only valid until 29/06 (I sent my challenge on 03/06) have Vinci missed the deadline?

Redx

sometimes the evidence can be so large as to fail to arrive in certain email inboxes due to size restrictions , handy if a PPC knows this

I had this a few days ago where an email with attachments was failing to a genuine gmail address but was received by an alternative hotmail address

both addresses were then tested with small attachments and both arrived ok

only a popla assessor or the lead adjudicator can tell you if any "deadlines" were missed

wait and see what popla decide as long as you have your complaint about leack of PPC evidence logged at popla , making sure you tell them you reserve the right to complain and rebut it

Handy_Hubby

Another win for MSE! Thanks for evryones help and guidance :beer::beer:

It is not in dispute that the appellant’s vehicle was parked at the site and received a parking charge notice after the operator’s employee concluded that the driver had parked in a parent and child bay without being accompanied by a child under 5.
The appellant made a number of representations, but I need only deal with the one upon which I am allowing the appeal, that it was for the operator to prove that the alleged breach of the terms of parking occurred.
The operator rejected these representations, stating that their employee observed the driver not having a child under 5 with them.

Handy_Hubby

Reasons for the Assessor’s Determination
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It is not in dispute that the appellant’s vehicle was parked at the site and received a parking charge notice after the operator’s employee concluded that the driver had parked in a parent and child bay without being accompanied by a child under 5.

The appellant made a number of representations, but I need only deal with the one upon which I am allowing the appeal, that it was for the operator to prove that the alleged breach of the terms of parking occurred.

The operator rejected these representations, stating that their employee observed the driver not having a child under 5 with them.

Considering all the evidence before me, I find that neither party has presented evidence on the presence or absence of a child under 5, other than their assertions. Therefore, as the burden of proof is on the operator as the party asserting it is owed money, I cannot find that the driver breached the terms of parking, so cannot find that the charge notice was validly issued.

Accordingly, I allow the appeal.
:beer:[/FONT][/FONT]:beer::beer:
Christopher Monk
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Assessor
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