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About to submit to POPLA, would you mind just answering a quick question?

Gemlou
Posts: 90 Forumite
Would you recommend that I take out section 4 as it's duplicated earlier in the appeal or leave it in? Thank you in advance, just wanted to check before I submitted it to POPLA.
Dear POPLA Assesor,
Re parking charge notice
POPLA ref
I am the registered keeper and I wish to appeal this charge on the following grounds;
1) No Genuine Pre Estimate of Loss
2) Contract with Landowner
3) Inadequate and non compliant signage
4) Insufficient time was allowed
1) No Genuine Pre Estimate of Loss
a) The Charge is not a contractual fee – it is a disguised breach
The Operator has attempted to avoid the necessity of having to justify a pre estimate of loss by stating that this is a contractually agreed fee on their signage. However on both the parking charge notice (which is described as exactly that, NOT an invoice for an agreed fee) and the rejection letter to my appeal they state that the charge is for having "breached" the terms and conditions of parking. In addition, the wording on their sign also states that "unauthorised parking may result in your vehicle being issued with a parking charge notice".
The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be consideration, it would have to mean that permission to park for longer than 48 hours was given providing a fee was paid. Clearly permission to "park in breach" cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.
I would like to highlight a similar appeal against CPM where POPLA assessor Marina Kapour found that
"The charge must either be for damages as submitted by the Appellant, or for consideration - the price paid for the parking as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay provided he or she pay the charge. Clearly, permission to park 'in breach' is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge and so it cannot be consideration".
I must also highlight POPLA appeal reference 9663053967 where an initially refused appeal against the same Operator who again, made the same attempt to describe the charge as a contractually agreed fee on their signage was allowed by the Lead Adjudicator. It was found that the charge was a penalty and as such was not a genuine pre estimate of loss. I contend that the same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee but is a disguised breach and must be shown to be a genuine pre estimate of loss to be enforceable.
b) The Charge is Not a Genuine Pre Estimate of Loss
The charge of £100 is being sought for an alleged breach of the parking terms namely “not parking within a designated parking bay” consequently I contend, and the BPA code of practice states, that a charge for breach must be based on the genuine pre estimate of loss.
The Office of Fair Trading has stated to the BPA that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.
On the day in question, the vehicle was parked for a few minutes at 20.46 on a rainy night while 2 sleeping children (1 baby) were carried inside in a free residents car park, there was neither damage nor obstruction caused (nor has been alleged) and it is clear that there was no loss caused to either the Operator, or the landowner, by any alleged breach.
In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated that a stipulation "will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach" and "there is an assumption that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".
As the charge in this case is the same lump sum whether the vehicle is parked for 1minutes or for 24 hours and the same amount is charged for any alleged contravention, it is clear that this is punitive and that no consideration has been given to calculating a genuine pre estimate of loss in this case. For reference, the alleged stay was for less than 15 minutes in a FREE residents parking area.
In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred to either the Operator or to the Landowner.
I therefore require the Operator to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach. Operational business costs such as staffing, equipment, vehicles, uniforms, signage or fuel expenses cannot possibly flow as a direct result of any breach as the Operator would be in the same position whether or not any breaches occur.
I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.
The Operator will no doubt state as they have in their rejection of my appeal that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.
This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier - there was no initial loss.
Christopher Adamson stated in a POPLA appeal against VCS Ltd that
"the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonable moved away from a strict interpretation of what constitutes a genuine pre estimate of loss, recognising that in complex commercial situations an accurate pre estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified".
In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said:
"the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".
The same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can be neither be commercially justified or proved to be a genuine pre estimate of loss. I would refer the assessor to the lead assessor's words from his 2014 annual report and expect that any attempt of a breakdown of supposed losses from the operator that contained costs that do not conform to Mr Greenslade's definition be ruled as extraneous.
He wrote
"However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."
2) Contract with Landowner
The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary or agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I request that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).
In order to comply with the BPA code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;
a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.
b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provide a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.
Even if a basic contract is produced that mentions parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.
I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.
3) Inadequate and Noncompliant Signage
Please note that the appellant has made a subsequent visit to establish the state of signage in the disputed area. The visit was made in daylight on a dry day, completely opposite to the conditions /time of the alleged breach.
On entering the development there is only 1 visible sign which is placed approx 2m up a lamp post on the opposite side of the road. Other signs further away are attached to the apartment buildings and it is completely unclear as to whether the same rules apply to the whole development as the wording on the signs differs.
The BPA code of practice February 2014 clearly states that "Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing THE SPECIFIC PARKING TERMS throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand".
I assert that in order to comply with this code the signs should clearly state the charges for stopping outside of a marked bay which they do not. They simply indicate the penalty for not displaying a valid permit or for over staying in those bays.
I also assert that being unable to read the detail on the sign visible on entry without stopping a vehicle and having only one sign located as described at the far end of the development which may or may not be visible depending on which spaces are occupied at the time of parking, further breaches this code.
I therefore require that the Operator submit contemporaneous evidence of clear and prominent signage throughout the development in the form of site maps and photographs clearly indicating the location and height of said signage at the time of the alleged breach.
I have taken photographs myself today for the purpose of rebuttal should the need arise and would once again remind the Operator of the requirement to submit copies of any evidence to the Appellant allowing sufficient time for consideration and rebuttal.
4. Insufficient time was allowed.
The vehicle was left for a few minutes as the driver arrived home late in the evening from a family event with 2 young sleeping children and as it was raining it was more than reasonable to park without causing obstruction for long enough to take them inside and put them into bed before moving the car. As both children were asleep, both the driver and passenger had to leave the vehicle in order to carry them inside. The car was then moved to the next road where there are no restrictions. Had the Operator still been present this would have been explained at the time. To issue a ticket on a vehicle observed for just 3 minutes is unreasonable and does not comply with the BPA code of practise which requires a reasonable grace period to be given. Current government wishes are that a grace period of at least 10 minutes be observed before a penalty is issued.
Further to my earlier point, the penalty for this was the same as other residents have received for using these spaces all night.
In their response to my appeal, the Operator has strongly recommended that I pay within 28 days in order to avoid further charges which doesn't allow me sufficient time to await your response. They add weight to their suggestion by quoting what they refer to as case law specifically the case of Beavis v Parking Eye which I understand is currently with the court of appeal and the judgement is not expected until Easter meaning it is not in fact case law at this point. This is a blatant attempt to dissuade me from following the correct appeal process which is unethical and will be reported to the BPA.
I respectfully request that my appeal be upheld and the Operator required to cancel this penalty.
Dear POPLA Assesor,
Re parking charge notice
POPLA ref
I am the registered keeper and I wish to appeal this charge on the following grounds;
1) No Genuine Pre Estimate of Loss
2) Contract with Landowner
3) Inadequate and non compliant signage
4) Insufficient time was allowed
1) No Genuine Pre Estimate of Loss
a) The Charge is not a contractual fee – it is a disguised breach
The Operator has attempted to avoid the necessity of having to justify a pre estimate of loss by stating that this is a contractually agreed fee on their signage. However on both the parking charge notice (which is described as exactly that, NOT an invoice for an agreed fee) and the rejection letter to my appeal they state that the charge is for having "breached" the terms and conditions of parking. In addition, the wording on their sign also states that "unauthorised parking may result in your vehicle being issued with a parking charge notice".
The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be consideration, it would have to mean that permission to park for longer than 48 hours was given providing a fee was paid. Clearly permission to "park in breach" cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.
I would like to highlight a similar appeal against CPM where POPLA assessor Marina Kapour found that
"The charge must either be for damages as submitted by the Appellant, or for consideration - the price paid for the parking as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay provided he or she pay the charge. Clearly, permission to park 'in breach' is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge and so it cannot be consideration".
I must also highlight POPLA appeal reference 9663053967 where an initially refused appeal against the same Operator who again, made the same attempt to describe the charge as a contractually agreed fee on their signage was allowed by the Lead Adjudicator. It was found that the charge was a penalty and as such was not a genuine pre estimate of loss. I contend that the same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee but is a disguised breach and must be shown to be a genuine pre estimate of loss to be enforceable.
b) The Charge is Not a Genuine Pre Estimate of Loss
The charge of £100 is being sought for an alleged breach of the parking terms namely “not parking within a designated parking bay” consequently I contend, and the BPA code of practice states, that a charge for breach must be based on the genuine pre estimate of loss.
The Office of Fair Trading has stated to the BPA that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.
On the day in question, the vehicle was parked for a few minutes at 20.46 on a rainy night while 2 sleeping children (1 baby) were carried inside in a free residents car park, there was neither damage nor obstruction caused (nor has been alleged) and it is clear that there was no loss caused to either the Operator, or the landowner, by any alleged breach.
In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated that a stipulation "will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach" and "there is an assumption that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".
As the charge in this case is the same lump sum whether the vehicle is parked for 1minutes or for 24 hours and the same amount is charged for any alleged contravention, it is clear that this is punitive and that no consideration has been given to calculating a genuine pre estimate of loss in this case. For reference, the alleged stay was for less than 15 minutes in a FREE residents parking area.
In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred to either the Operator or to the Landowner.
I therefore require the Operator to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach. Operational business costs such as staffing, equipment, vehicles, uniforms, signage or fuel expenses cannot possibly flow as a direct result of any breach as the Operator would be in the same position whether or not any breaches occur.
I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.
The Operator will no doubt state as they have in their rejection of my appeal that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.
This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier - there was no initial loss.
Christopher Adamson stated in a POPLA appeal against VCS Ltd that
"the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonable moved away from a strict interpretation of what constitutes a genuine pre estimate of loss, recognising that in complex commercial situations an accurate pre estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified".
In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said:
"the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".
The same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can be neither be commercially justified or proved to be a genuine pre estimate of loss. I would refer the assessor to the lead assessor's words from his 2014 annual report and expect that any attempt of a breakdown of supposed losses from the operator that contained costs that do not conform to Mr Greenslade's definition be ruled as extraneous.
He wrote
"However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."
2) Contract with Landowner
The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary or agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I request that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).
In order to comply with the BPA code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;
a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.
b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provide a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.
Even if a basic contract is produced that mentions parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.
I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.
3) Inadequate and Noncompliant Signage
Please note that the appellant has made a subsequent visit to establish the state of signage in the disputed area. The visit was made in daylight on a dry day, completely opposite to the conditions /time of the alleged breach.
On entering the development there is only 1 visible sign which is placed approx 2m up a lamp post on the opposite side of the road. Other signs further away are attached to the apartment buildings and it is completely unclear as to whether the same rules apply to the whole development as the wording on the signs differs.
The BPA code of practice February 2014 clearly states that "Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing THE SPECIFIC PARKING TERMS throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand".
I assert that in order to comply with this code the signs should clearly state the charges for stopping outside of a marked bay which they do not. They simply indicate the penalty for not displaying a valid permit or for over staying in those bays.
I also assert that being unable to read the detail on the sign visible on entry without stopping a vehicle and having only one sign located as described at the far end of the development which may or may not be visible depending on which spaces are occupied at the time of parking, further breaches this code.
I therefore require that the Operator submit contemporaneous evidence of clear and prominent signage throughout the development in the form of site maps and photographs clearly indicating the location and height of said signage at the time of the alleged breach.
I have taken photographs myself today for the purpose of rebuttal should the need arise and would once again remind the Operator of the requirement to submit copies of any evidence to the Appellant allowing sufficient time for consideration and rebuttal.
4. Insufficient time was allowed.
The vehicle was left for a few minutes as the driver arrived home late in the evening from a family event with 2 young sleeping children and as it was raining it was more than reasonable to park without causing obstruction for long enough to take them inside and put them into bed before moving the car. As both children were asleep, both the driver and passenger had to leave the vehicle in order to carry them inside. The car was then moved to the next road where there are no restrictions. Had the Operator still been present this would have been explained at the time. To issue a ticket on a vehicle observed for just 3 minutes is unreasonable and does not comply with the BPA code of practise which requires a reasonable grace period to be given. Current government wishes are that a grace period of at least 10 minutes be observed before a penalty is issued.
Further to my earlier point, the penalty for this was the same as other residents have received for using these spaces all night.
In their response to my appeal, the Operator has strongly recommended that I pay within 28 days in order to avoid further charges which doesn't allow me sufficient time to await your response. They add weight to their suggestion by quoting what they refer to as case law specifically the case of Beavis v Parking Eye which I understand is currently with the court of appeal and the judgement is not expected until Easter meaning it is not in fact case law at this point. This is a blatant attempt to dissuade me from following the correct appeal process which is unethical and will be reported to the BPA.
I respectfully request that my appeal be upheld and the Operator required to cancel this penalty.
0
Comments
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Hi Gemlou
That looks fine but it would help if you identified (for our benefit) which PPC this involves.My very sincere apologies for those hoping to request off-board assistance but I am now so inundated with requests that in order to do justice to those "already in the system" I am no longer accepting PM's and am unlikely to do so for the foreseeable future (August 2016).
For those seeking more detailed advice and guidance regarding small claims cases arising from private parking issues I recommend that you visit the Private Parking forum on PePiPoo.com0 -
Section 4 is mitigating circumstances and not relevant to the appeal so you should get rid of it. They'll stop reading after section 2 anyway. 'No other appeal points need to be deliberated on'0
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