POPLA appeal letter - no permit on display

Hello, I've been through the guidance and am at the stage where I have a rejected 'soft' appeal from the PPC following their NtK. I have a POPLA code and am in the process of drafting my letter of appeal.

In summary: I parked in a P&D car park after hours (outside of 8am-8pm charging period) with the intention of moving the car before 8am the following day, which I didn't do - ticket was issued at 8:13am, I arrived around 8:30am to find the ticket on the windscreen.
The car park is local authority owned but operated by a private company, not one previously mentioned on the MSE site from what I can see. No cameras operate in the car park.

Reasons for rejecting my soft appeal:
1. Vehicle was parked without making proper payment
2. No valid ticket or permit on display
The POC has provided photographic evidence showing no permit on display. So on the face of it I am pretty much bang to rights however will go through with the appeal and see what happens!

I think i've got everything covered but would definitely appreciate an experienced eye to review the letter before I send it off.
I've left out the points regarding signage as I didn't obtain a ticket and thus didn't go near the P&D machine. Incidentally the signs are adjacent to the P&D machine.
I've also highlighted the PrivateEye v Beavis case which I'm not sure on the outcome of (due Feb 2015 based on the template).

My appeal letter thus far which I have taken from:
forums[dot]moneysavingexpert[dot]com/showthread.php?p=65745741#post65745741
I've used bits from both the older letter by jps1610 and the updated one by CouponMad... text in RED are my edits to the template.

Re: Business Watch Guarding Ltd, reference code xxxxxxxxxx
POPLA Code: xxxxxxxxxxxxxx

I am the registered keeper and I wish to appeal a recent parking charge from Business Watch Guarding. I submit the points below to show that I am not liable for the parking charge:

1) No genuine pre-estimate of loss
2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
3) No standing or authority to pursue charges nor form contracts with drivers.

1) No genuine pre-estimate of loss
This car park is Pay and Display. There was no damage nor obstruction caused so there can be no loss arising from the incident. The Car Park was approximately a quarter full at the time of arrival and less than a quarter full when we left. The photographs provided by Business Watch Guarding show that no cars are parked either side of my vehicle or in the numerous spaces directly behind the vehicle. Business Watch Guarding allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event.

Having received the Notice to Keeper in the post I had very little information (see point #2) so went and checked the signage and it seems that up to 2 hours would have cost £3.00 so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £1.80 at the most, given that the ticket was issued at 08:13 (13 minutes into the 8am-8pm charging period). Business Watch Guarding have not told me these details, despite it being a prerequisite of Schedule 4 (see point #2).


The Operator cannot reasonably claim a broad percentage of their entire business running costs, as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. I suggest there was never any advance meeting held with the client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged overstay is 20 minutes or 20 hours.

The Operator alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement) would fall foul of Mr Greenslade's explanation abut GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges.

In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper, so I have no idea) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event.

An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.

Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

LINK

In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely.

This charge cannot be 'commercially justified' either, so this Operator would be wasting their time to adduce the flawed and not persuasive 'ParkingEye v Beavis' small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway, due to be heard in February 2015). POPLA Assessor Chris Adamson has stated in June 2014 that: - what was the outcome of this case?

''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 reasonably 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.''

2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability

As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed!

I can see from the limited information before me in the NTK, only that the car stayed for a certain amount of time and that the contravention was 'either/or' an overstay or failure to pay. This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

These are the omissions:
''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid...'

The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.

3) 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, Business Watch Guarding must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. 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 Business Watch Guarding to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Business Watch Guarding and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Business Watch Guarding.

This concludes my POPLA appeal.

Yours faithfully,

xxxxxxxxxx {registered keeper's name...}

Replies

  • Hi, does anyone have anything to add to this? Would like to get it sent out later today/tomorrow, thanks!:)
  • bod1467bod1467
    15.2K Posts
    ✭✭✭✭✭
    The obvious omission is signage, non-compliance with BPA requirements. (Whether the signage was or was not compliant doesn't matter - you make them prove it).
  • OK thanks, will add that section back in
  • GiantDrag wrote: »
    OK thanks, will add that section back in

    Hi there - I just sent you a PM, could you kindly review.

    Thank you

    Ben
  • bod1467bod1467
    15.2K Posts
    ✭✭✭✭✭
    Last Activity: 31-03-2015 4:55 PM

    Unless he has email notifications set for PMs I doubt he'll see it any time soon.
  • Indeed, have only just read it. Ben my letter was as above only with a section added in covering signage which is like for like from other letters.

    Update...
    Received A letter from Popla today staying my appeal cannot be registered because there is no verification code or the verification code is incorrect. The letter then states I may need to contact the operator to receive one.

    I am a little confused as to where I stand. Lots of ambiguity. The verification code was filled in on the form by the PCN and looks OK (10 digit numerical) . The letter from Popla was received today 16th but dated 10th April, either way we are past the 28 day time to appeal.

    Is my appeal time reset or suspended? I will call popla tomorrow to see what the deal is, but it looks like I need to get a new verification code.

    Any thoughts ��

    Cheers,
    Paul
  • FruitcakeFruitcake Forumite
    52.5K Posts
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    ✭✭✭✭✭✭
    GiantDrag wrote: »
    Indeed, have only just read it. Ben my letter was as above only with a section added in covering signage which is like for like from other letters.

    Update...
    Received A letter from Popla today staying my appeal cannot be registered because there is no verification code or the verification code is incorrect. The letter then states I may need to contact the operator to receive one.

    I am a little confused as to where I stand. Lots of ambiguity. The verification code was filled in on the form by the PCN and looks OK (10 digit numerical) . The letter from Popla was received today 16th but dated 10th April, either way we are past the 28 day time to appeal.

    Is my appeal time reset or suspended? I will call popla tomorrow to see what the deal is, but it looks like I need to get a new verification code.

    Any thoughts ��

    Cheers,
    Paul



    Check the PoPLA code on the Parking Cowboys or Parking Pranksters sites to see if it is a valid code. If not, complain to the PPC, BPA, DVLA, and PoPLA and request the BPA and PoPLA instruct the PPC to give you a new valid code and give you more time to re-submit your appeal.
    I married my cousin. I had to...
    I don't have a sister. :D
    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
  • Fruitcake wrote: »
    Check the PoPLA code on the Parking Cowboys or Parking Pranksters sites to see if it is a valid code. If not, complain to the PPC, BPA, DVLA, and PoPLA and request the BPA and PoPLA instruct the PPC to give you a new valid code and give you more time to re-submit your appeal.

    Checked it: the code checker says the code was issued on 27th Dec 2015 and thertherefore I have until January 2016 to appeal!!! So it looks like the code is erroneous :T well done PPC
This discussion has been closed.
Latest News and Guides