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POPLA Appeal vs TPS
cc_rider
Posts: 6 Forumite
Hi All,
I've just finished putting my POPLA appeal together and would be grateful if somebody in the know would give it a look over.
I've excluded most or all identifying info. For background it was a free store car park where the staff will sometimes fit stuff you've bought onto your car, etc.
I've proof read it once but very tired and this needs to be submitted in the next day so if i've missed anything obvious, please let me know.
thanks
:beer:
1) The Charge is not a genuine pre-estimate of loss
The Notice to Keeper states that the charge is because "the vehicle was in violation of the terms and conditions displayed on the signage." The parking charge must therefore be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. In order for consequential losses to flow from a breach of the terms and conditions, there must be an initial loss incurred by the Operator.
In their response to my direct appeal, challenging this point, TPS states:
"We have calculated the sum owed as a genuine pre-estimate of the losses incurred in managing the parking location to ensure compliance to the stated Terms and Conditions on site and to follow up on any breaches. We would remind you that the sum requested is well within the recommendations set out within Clause 19 of the BPA Code of Practice"
This is clearly a description of TPS's normal operational costs and not of a loss incurred as a result of the 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. I therefore assert that the TPS have failed to prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event since there was no loss of potential income in the free car park. Even if TPS could show the car park to have been full during the time that the vehicle was parked therein, the figure of £90 is an arbitrary figure more akin to a punitive charge that is simply designed to be "...well within the recommendations set out within Clause 19 of the BPA Code of Practice."
Since declining my direct appeal, TPS have written to me declaring that the deadline to appeal has passed, and demanding an arbitrarily higher amount (£130) than previously. This increase has neither been explained nor itemised and I believe that this further demonstrates the arbitrary and punitive nature of this "charge" and in my mind takes on the character of a threat, to the effect of "pay now or pay more later." This is exactly the sort of behaviour that the BPA should seek to quash, if it is to retain credibility as the arbiter of best practice for the parking industry.
2) Lack of signage - no contract with driver
In lodging my initial appeal to TPS, I found it difficult to believe that any driver would accept such onerous terms should they be made clear at the outset, therefore reasoned that the signage must not have been adequate. Since TPS's reply to this point of my appeal is to assert that:
"the signage is displayed in compliance with all relevant laws and regulations"
I have since visited the car park in question in order to examine the signage.
I found that there is one sign outside the entrance clearly stating that it is a customer car park. It also states in smaller lettering that there is a maximum stay of 60 minutes, and in yet smaller writing (at least 5x smaller) "see notices in car park for details." What is significant about this sign is that its key message is that it is a customer car park and the additional points are difficult to read, especially as its placement (visible immediately after turning into the entrance from either direction on the main road and then disappearing equally quickly) and font size means that in a moving vehicle there is little chance of actually seeing it, never mind being able to read the whole thing. I do not think that it is appropriate to expect a driver in control of a moving vehicle to commit the majority of their attention to reading such small typeface. It would have been more visible if placed 10-15m back along the road, just before it opens out into the car park itself. Also, when walking from the car park to the shop, this sign is not legible as it is facing outwards, so if missed when briefly exposed on entering the car park, it will not be seen when entering the store.
Once inside the car park, I had to search to find the "terms and conditions" signage. They were not easily visible, and were difficult to read even with good eyes. There were 3 that I could see, in an empty car park, all placed 3-4m high and with small enough print that one has to walk right up underneath them and crank their head right back in order to have a chance of reading them. The relevant term, relating to the "agreement" is written in very small font in red on a dark blue background making it very difficult to read, and the term pertaining to agreeing to pay the parking charge notice is in equally small font. Moreover, any customer parking in the front 1/3 of the car park and then walking directly to the main road to Halfords entrance (outside the entrance to the car park) would never see one of these signs as there are none posted in that area.
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 the case of parking, terms must be clear to read before the parking event). I maintain that no sign was seen; therefore there was no consideration/acceptance and no contract agreed.
3) Lack of standing/authority from landowner
I asserted that TPS has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right. They have not provided proof to the contrary or otherwise addressed this point.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put TPS to strict proof of the contract terms with the actual landowner (not a lessee or agent). TPS 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. No evidence has been supplied lawfully showing that TPS are entitled to pursue these charges in their own right.
I require TPS to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I assert that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, 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. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.
4) 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, where parking is or is not allowed and in what circumstances.
As the notice of terms was placed too high to read easily and was not therefore prominent, I contest that it 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.”
I contend it is wholly unreasonable to rely on poorly positioned and composed signs signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car parking in a car park that is free to use where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.
5. ANPR records are unreliable and not proof of one parking event.
The charge is founded entirely on two photos of my vehicle entering/leaving the car park at specific times. I put TPS to strict proof that their ANPR system is not fundamentally flawed because of known issues such as missing checks and maintenance of the timer/cameras and the possibility of two visits being recorded as one. The Operator's proof must show checks relating to my case/my vehicle, not vague statements about any maintenance checks carried out at other times.
The 'two visits recorded as one' problem is very common and is even mentioned on the BPA website as a known issue:
[removed link to BPA - How-does-ANPR-work]
The BPA says: ''As with all new technology, there are issues associated with its use:
Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''
Since I am merely the registered keeper, I have no evidence to discount the above possibilities. TPS show no parking photographs so they cannot say for certain that the car was not involved in non-parking related activity - e.g. queuing, waiting for service or filling up with fluids, fitting components, etc. nor can they show the car did not leave the site and return. This could easily be a case of two visits, or if my vehicle was on site for the time shown, I suggest that it may well not have been 'parked' for more than 60 minutes. As the car park is owned and operated by an automotive supply store there is a customer service area on site, where shop staff fit automotive components for customers, so I put TPS to strict proof of actual parking for over 60 minutes with no other business-related activity.
I agree with the BPA that this ANPR technology has issues associated with its use. These also include (but are not limited to) synchronisation errors, buffering, faults with the timer, faults with one or other of the cameras, faults with the wireless signals and differences between the settings of the in/out clocks. The operator uses WIFI with an inherent delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever accurate to the minute.
In addition, the BPA CoP contains the following in paragraph 21:
''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''
TPS fail to operate the system in a 'reasonable, consistent and transparent manner'. They place signs far too high to see on arrival and these are not lit, so there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret, high-up, spy camera - far from 'transparent' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.
I therefore respectfully request that my appeal is upheld and the charge is dismissed.
I've just finished putting my POPLA appeal together and would be grateful if somebody in the know would give it a look over.
I've excluded most or all identifying info. For background it was a free store car park where the staff will sometimes fit stuff you've bought onto your car, etc.
I've proof read it once but very tired and this needs to be submitted in the next day so if i've missed anything obvious, please let me know.
thanks
:beer:
1) The Charge is not a genuine pre-estimate of loss
The Notice to Keeper states that the charge is because "the vehicle was in violation of the terms and conditions displayed on the signage." The parking charge must therefore be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. In order for consequential losses to flow from a breach of the terms and conditions, there must be an initial loss incurred by the Operator.
In their response to my direct appeal, challenging this point, TPS states:
"We have calculated the sum owed as a genuine pre-estimate of the losses incurred in managing the parking location to ensure compliance to the stated Terms and Conditions on site and to follow up on any breaches. We would remind you that the sum requested is well within the recommendations set out within Clause 19 of the BPA Code of Practice"
This is clearly a description of TPS's normal operational costs and not of a loss incurred as a result of the 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. I therefore assert that the TPS have failed to prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event since there was no loss of potential income in the free car park. Even if TPS could show the car park to have been full during the time that the vehicle was parked therein, the figure of £90 is an arbitrary figure more akin to a punitive charge that is simply designed to be "...well within the recommendations set out within Clause 19 of the BPA Code of Practice."
Since declining my direct appeal, TPS have written to me declaring that the deadline to appeal has passed, and demanding an arbitrarily higher amount (£130) than previously. This increase has neither been explained nor itemised and I believe that this further demonstrates the arbitrary and punitive nature of this "charge" and in my mind takes on the character of a threat, to the effect of "pay now or pay more later." This is exactly the sort of behaviour that the BPA should seek to quash, if it is to retain credibility as the arbiter of best practice for the parking industry.
2) Lack of signage - no contract with driver
In lodging my initial appeal to TPS, I found it difficult to believe that any driver would accept such onerous terms should they be made clear at the outset, therefore reasoned that the signage must not have been adequate. Since TPS's reply to this point of my appeal is to assert that:
"the signage is displayed in compliance with all relevant laws and regulations"
I have since visited the car park in question in order to examine the signage.
I found that there is one sign outside the entrance clearly stating that it is a customer car park. It also states in smaller lettering that there is a maximum stay of 60 minutes, and in yet smaller writing (at least 5x smaller) "see notices in car park for details." What is significant about this sign is that its key message is that it is a customer car park and the additional points are difficult to read, especially as its placement (visible immediately after turning into the entrance from either direction on the main road and then disappearing equally quickly) and font size means that in a moving vehicle there is little chance of actually seeing it, never mind being able to read the whole thing. I do not think that it is appropriate to expect a driver in control of a moving vehicle to commit the majority of their attention to reading such small typeface. It would have been more visible if placed 10-15m back along the road, just before it opens out into the car park itself. Also, when walking from the car park to the shop, this sign is not legible as it is facing outwards, so if missed when briefly exposed on entering the car park, it will not be seen when entering the store.
Once inside the car park, I had to search to find the "terms and conditions" signage. They were not easily visible, and were difficult to read even with good eyes. There were 3 that I could see, in an empty car park, all placed 3-4m high and with small enough print that one has to walk right up underneath them and crank their head right back in order to have a chance of reading them. The relevant term, relating to the "agreement" is written in very small font in red on a dark blue background making it very difficult to read, and the term pertaining to agreeing to pay the parking charge notice is in equally small font. Moreover, any customer parking in the front 1/3 of the car park and then walking directly to the main road to Halfords entrance (outside the entrance to the car park) would never see one of these signs as there are none posted in that area.
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 the case of parking, terms must be clear to read before the parking event). I maintain that no sign was seen; therefore there was no consideration/acceptance and no contract agreed.
3) Lack of standing/authority from landowner
I asserted that TPS has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right. They have not provided proof to the contrary or otherwise addressed this point.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put TPS to strict proof of the contract terms with the actual landowner (not a lessee or agent). TPS 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. No evidence has been supplied lawfully showing that TPS are entitled to pursue these charges in their own right.
I require TPS to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I assert that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, 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. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.
4) 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, where parking is or is not allowed and in what circumstances.
As the notice of terms was placed too high to read easily and was not therefore prominent, I contest that it 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.”
I contend it is wholly unreasonable to rely on poorly positioned and composed signs signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car parking in a car park that is free to use where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.
5. ANPR records are unreliable and not proof of one parking event.
The charge is founded entirely on two photos of my vehicle entering/leaving the car park at specific times. I put TPS to strict proof that their ANPR system is not fundamentally flawed because of known issues such as missing checks and maintenance of the timer/cameras and the possibility of two visits being recorded as one. The Operator's proof must show checks relating to my case/my vehicle, not vague statements about any maintenance checks carried out at other times.
The 'two visits recorded as one' problem is very common and is even mentioned on the BPA website as a known issue:
[removed link to BPA - How-does-ANPR-work]
The BPA says: ''As with all new technology, there are issues associated with its use:
Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''
Since I am merely the registered keeper, I have no evidence to discount the above possibilities. TPS show no parking photographs so they cannot say for certain that the car was not involved in non-parking related activity - e.g. queuing, waiting for service or filling up with fluids, fitting components, etc. nor can they show the car did not leave the site and return. This could easily be a case of two visits, or if my vehicle was on site for the time shown, I suggest that it may well not have been 'parked' for more than 60 minutes. As the car park is owned and operated by an automotive supply store there is a customer service area on site, where shop staff fit automotive components for customers, so I put TPS to strict proof of actual parking for over 60 minutes with no other business-related activity.
I agree with the BPA that this ANPR technology has issues associated with its use. These also include (but are not limited to) synchronisation errors, buffering, faults with the timer, faults with one or other of the cameras, faults with the wireless signals and differences between the settings of the in/out clocks. The operator uses WIFI with an inherent delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever accurate to the minute.
In addition, the BPA CoP contains the following in paragraph 21:
''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''
TPS fail to operate the system in a 'reasonable, consistent and transparent manner'. They place signs far too high to see on arrival and these are not lit, so there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret, high-up, spy camera - far from 'transparent' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.
I therefore respectfully request that my appeal is upheld and the charge is dismissed.
0
Comments
-
No time to look - work calls! But will bump this to the top for others to check.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
One more question... should I include my photos of the signage at the site or should I leave it to the operator to prove that their signs are adequate?
Thanks again...
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