PCN at station carpark - appeal rejected

Umkomaas

tishtash78 wrote: »

I have no problem with anyone being harsh if it helps me with this case.
I am however getting increasingly frustrated trying to find my way around and understand these forums - I've tried searching for the 'Newbie Sticky how to win at Popla' but keep coming up with other threads and am not sure how to find what I'm looking for! I'm an intelligent person but have spent many hours trawling through this and other forums and 'The Parking Attendant got it wrong' was a direct quote from one of the template letters on here when I was advised to use 3 of the 4 reasons.

Try this!

https://forums.moneysavingexpert.com/discussion/comment/62180281#Comment_62180281

Look for NCP - they're there, but loads of others too to draw from!

tishtash78

My head is now spinning with all the variations I could/should/shouldn't use for my appeal. I am considering using 'Private Parking Appeals' who say they help win POPLA appeals for those not confident to do so. I'm thinking their charge of £18 could take the headache away of trying to do this myself. Has anyone else used them or similar?

waamo

Actually you are almost there. Take out all emotive language. NCP often own their car parks so you can't use no standing or no contract.

Poor or none existent markings are a valid point. No contract can be formed with inadequate markings. GPEOL should be used. Poor signage is an important point. The signage does not make it clear you could not park where you did. Make them demonstrate it did.

Don't forget you don't have to prove anything if you make a point they have to prove you wrong so don't include any photos of the signs.

Others will probably add points.

tishtash78

Here is my 2nd attempt, hopefully taking on board previous suggestions. Again, any advice, criticism (constructive) or help would be appreciated, especially how to close the letter and if anything else needs to go in. Many thanks.

Dear Sir or Madam,

I was issued with a parking ticket on [insert date] but I believe it was unfairly and unlawfully issued. I will not be paying the demand for payment for the following reasons:

• The alleged contravention did not occur
The vehicle was not parked inappropriately at the time the ticket was issued. This is due to the fact that all surrounding bays are poorly marked/worn markings and it is unclear whether this area is marked with bays or not. Please see attached photographic evidence, as proof of my claim.

• There was insufficient signage
The car park in question has no clear signage to explain what the relevant parking restrictions are. The only signage I was aware of in this area of the car park were those showing the parking tariffs and those stating there is a charge of £75 for an improperly displayed ticket. My ticket was valid and correctly displayed in my vehicle.

Only when I returned to the car park to review the area on foot, was I able to see the sign at the entrance which was on the opposite side of the footpath and in the smallest print (which I could not clearly read even when stood in front of it) and is certainly not clear or visible from a vehicle entering the car park (especially as it is on the exit side).

• The charge is disproportionate and not a genuine pre-estimate of loss
The amount charged is not based upon any genuine pre-estimate of loss to the company or the landowner.
According to the Unfair Consumer Contract Regulations, parking charges on private land must not exceed the cost to the landowner during the period the motorist is parked there.
In my case, the £75.00 charge being asked for far exceeds the cost to the landowner of £2.20 for off peak (after 10am) parking.

The photographic evidence I enclose shows that the car park is poorly maintained with very patchy and unclear markings throughout. There is an area at the far end which has very faded yellow box markings – there are no such markings or any signage whatsoever where I parked to show this particular area was prohibited to park in. Furthermore I have witnessed several other vehicles on several other occasions parked in the exact same place which upholds my theory.

Yours faithfully,

Ralph-y

as has all ready been said you are close but , yes I know there is all ways a but .....

forget any mitigation as it will not work POPLA even say as much on there website.


as Umkomaas has said

look at
http://forums.moneysavingexpert.com/...80281&posted=1

pick any one appeal ..... you do not need to rewrite it .... just take out any bits that do not fit.

In effect all you should need is the GPEOL bit but it is far better to provide more (some assessors have bad days)

or even try

https://forums.moneysavingexpert.com/discussion/5149887

Ralph:cool:

tishtash78

Thank you for your comments. I have already picked an appeal and adapted it to fit - the result is what I posted. What mitigation have I included? You say I'm close - please tell me what has to be added/deleted or amended to make this just right? Specifics would be really helpful to tweak what I have for the best result. Thanks again.

Ralph-y

just have a quick look how the appeals in my last link are laid out

keep at it you will win

Ralph:cool:

tishtash78

I am still working on my next draft to post for your helpful comments but have a question... The car park was a station car park, owned by C2C Rail - so should I include the 'no standing or no contract' section in my response?
Once again, all advice really appreciated.

tishtash78

Once again thank you for all your help with this.
I would greatly appreciate anyone who could review the letter below before I submit it to POPLA. Any advice is most welcome. Thank you.

Dear POPLA Assessor,

I wish to appeal a recent parking charge issued by National Car Parks Ltd. I submit the points below to show that I am not liable for the parking charge. I would ask that all points are taken into consideration:

1) The signage was not in accordance with the BPA code of practice and was not sufficiently prominent to form a contract

2) The charge does not represent a genuine pre-estimate of loss

3) Unreasonable / unfair terms

4) No actual loss was made

5) Railway land is not ‘relevant land’


1) The signage was not in accordance with the BPA code of practice and was not sufficiently prominent to form a contract
Having visited the location of the alleged “breach”, it is evident the signage provided by NCP does not comply with the BPA code of practice in particular 18.3, 18.5 and 18.8. NCP are required to show evidence to the contrary.

Unclear signage breaches Appendix B of the BPA Code of Practice which states that contractual terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. In the absence of sufficiently prominent and detailed signage, the driver could not have been made aware of any charges applicable nor that a contract had even been proposed by NCP in respect of the alleged event. There is no offer to park at the location by payment of a charge, and there is no description of what the driver would receive from such a contract. The Appellant submits that a valid contract was not offered; even if (non-compliant) signs were present, the driver was not offered the opportunity to enter into a negotiation in order to influence the contractual terms, nor given the opportunity to accept or reject any terms. The Appellant submits that, if signs were present on the day of the alleged event, they were not prominent enough to form a valid contract. The Appellant submits that no detailed terms relating to this Operator's onerous, inflated penalty charge were visible, and it is therefore apparent that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

2) The charge does not represent a genuine pre-estimate of loss
The charge of £75 levied for ‘not parking correctly within the markings of a bay space’ is punitive and unreasonable, contravening the British Parking Association’s Code of Practice section 19.
The BPA Code of Practice clause 19.5 states:
“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.“
This is followed by clause 19.6 which states:
“If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.“
The BPA Code of Practice requires that if a parking charge is for an alleged breach of contract then it must prove to be a genuine pre-estimate of loss flowing from the incident. This cannot be a subsequently devised statement as this would not be a pre-estimate. The Appellant requests that NCP provides a detailed breakdown of how the amount of the charge was calculated in the form of documented, specific evidence applicable to this car park and this alleged incident. According to previous POPLA adjudications and Court rulings, running costs, such as erecting signage, wages, uniform and office costs may not be included in the calculations as they would have occurred whether a breach occurred or not.

Given that NCP apparently charge the same lump sum for parking outside the marked lines of a bay as they would an overstay of 30 minutes or 5 hours, and the same fixed charge applies to any alleged contravention, it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this alleged breach of contract by NCP.

3) Unreasonable / unfair terms
The charge being claimed by the Operator is a punitive sum. According to the Office of Fair Trading ‘Guidance for the Unfair Terms in Consumer Contracts Regulations 1999’ it “is unfair to impose disproportionate sanctions for 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...''

It is wholly unreasonable to attempt to profit by charging a disproportionate sum where no loss has been caused by a driver who has paid and displayed a ticket. The Appellant requests strict proof that the charge does not cause a significant imbalance to the Appellant’s detriment and to justify the Operators charge does not breach the UTCCRs and UCT Act.

4) No actual loss was made by NCP
The correct fee had been paid for the Appellant’s vehicle to be parked on the date of the alleged contravention. Furthermore, the Appellant’s vehicle was parked at the end of a row of spaces and was adjacent to two other bays which were occupied by other vehicles on the date of the alleged offence. The Appellant therefore contends that NCP made no initial loss due to the parking of the vehicle on 19th February 2015 as alleged by NCP.

5) Railway land is not ‘relevant land’
Since byelaws apply to railway land, the land is not ‘relevant land’ within the meaning of PoFA and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I ask the Operator for strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Rail authorities that this land is not already covered by bylaws. The onus falls upon National Car Parks Ltd (NCP) to demonstrate this and I put them to strict proof on this point.

In addition to the above points, the car park in question is particularly poorly maintained with patchy and unclear bay markings throughout. There are no markings or signage where the vehicle was parked to indicate parking prohibition. Furthermore several other vehicles on several other occasions have been parked in the same place which upholds this evidence.

Taking all the above points into consideration, I therefore respectfully request that POPLA uphold my appeal and instruct NCP to cancel the Charge.

Yours faithfully