Window Screen Ticket Issued - Now received NTK... Advise please?

bod1467

Post #3 has been edited since the Beavis result at the Court of Appeal, hence why you can't find the links that were there originally. But if you search the forum you'll find countless appeal examples. In fact there are even some in the POPLA Decisions thread.

totallytech

Ah! Ok, I was concerned I was looking at the wrong information...

I found one and I've drafted:

POPLA Reference Number:
Vehicle Reg:
PPC: Norfolk Parking Enforcement Ltd.
PCN Ref:
Alleged Contravention Date & Time: 18/02/15 : 11:42AM
Date of PCN: 07/04/15

I as the registered keeper received an invoice from Norfolk Parking Enforcement Ltd. requiring payment of a charge of £100 (discounted to £60 if paid within 14 days) for the alleged contravention of “Parking in Disabled Bay without clearly displaying a Valid Disabled Badge”. This issue date on the invoice is 18/02/15.

As the registered keeper, I would like to appeal this notice on the following grounds:
1. Charge not a genuine pre-estimate of loss
2. The amount of the charge is disproportionate
3. No authority to levy charges
4. No Creditor identified on the Notice to Appellant
5. Unlawful Penalty Charge
6. Summary

1. Charge not a genuine pre-estimate of loss
The demand for a payment of £100 (discounted to £60 if paid within 14 days) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The keeper declares that the charge is punitive and therefore an unenforceable penalty.
The BPA code of practice states: The BPA Code of Practice states:
“19.5 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.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. I require Norfolk Parking Enforcement Ltd. to provide a detailed breakdown of how the amount of the “charge” was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business (such as the erection of signage, the provision of back office services, the maintenance of ANPR cameras, cost of membership of the BPA Ltd etc.) may not be included in this pre-estimate of loss.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

2. The amount of the charge is disproportionate
The amount of the charge is disproportionate to the loss incurred (off which there is none as this is a free car park) by Norfolk Parking Enforcement Ltd. and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to be a penalty because being a free car park it is impossible to pay for any overstay. There can have been no loss arising from this incident. Neither can Norfolk Parking Enforcement Ltd. lawfully include their operational day-to-day running costs in any “loss” claimed. I contend there can be no loss shown whatsoever. The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking, as the parking meter rate in the corresponding area is £2.50 per hour. I would question that if a charge can be discounted by £30 by early payment that it is unreasonable to begin with.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

3. No authority to levy charges
A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner’s behalf and enforce for breach of contract. Norfolk Parking Enforcement Ltd. must produce evidence to demonstrate that it is the landowner, or a contract that it has the authority of the landowner to issue charge notices at this location.
I believe there is no contract with the landowner/occupier that entitles Norfolk Parking Enforcement Ltd. to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore has no authority to issue charge notices.
I put the Norfolk Parking Enforcement Ltd. to strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that the Norfolk Parking Enforcement Ltd. produce to POPLA the contemporaneous and unredacted contract between the landowner and the Norfolk Parking Enforcement Ltd. Even if a basic contract is produced and mentions PCNs, 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 Norfolk Parking Enforcement Ltd. and the owner/occupier, containing nothing that Norfolk Parking Enforcement Ltd. can lawfully use in their own name as a mere agent, that could impact on a third party customer.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

4. No Creditor identified on the Notice to Appellant
Failing to include specific identification as to who “the Creditor” may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to Norfolk Parking Enforcement Ltd. Ltd., there is no specific identification of the Creditor who may, in law, be Norfolk Parking Enforcement Ltd. Ltd. or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that “The Creditor is…” and the Notice does not.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

5. Unlawful Penalty Charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this “charge” is an attempt at extorting an unlawful charge in lieu of a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012). The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

6. Summary
On the basis of all the points I have raised, this “charge” fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.

Yours faithfully

I also want to say that apart from the paint on the ground it is not very clear that the space is for disabled users only (no sign in front where the driver could see it if accidently parking there - if the driver had any idea it was disabled only then they wouldnt have parked there as there were plenty of other spaces at the time) - Can I / Should I add this?

totallytech

I've just looked at the photos of the vehicle parked in the bay, the bay to the drivers side is yellow but zig-zagged off for no parking at all, the line behind the car that the driver would have seen walking away is white (like a normal space) so only the line on the passenger side is yellow and the driver wouldn't have seen it. You have to stand on the other side of the road to see the wheelchair symbol under the car (which wasnt seen by the driver) and nothing else to indicate a disabled bay. There is signage which says no parking in crosshatched bays and that you must display a valid badge and clock if using the disabled bay however it really isnt clear that you are in a disabled bay.

Out of the 7 photos they took, you can only see its disabled in one photo, standing on the other side of the road, at least 3m's away (I would guestimate).

Can I add anything to the above appeal?

Also, please don't think this is the normal for me, I have several members of my family who have blue badges and its so annoying when they cannot park because someone else was parked who doesn't have the badge - this was a genuine mistake!

totallytech

I've also noticed that the Parking Notice stuck to the window was moved for the photos. In one photo its on the drivers window as they photograph the side of the car, then the next photo its stuck to the front windscreen drivers side (which is where it was when the driver returned to the car). I'm wondering why this was moved for the photos? Not sure if I could use this at all?

totallytech

I'm about to send off my appeal to popla, however I'm still unsure how to say about the signage... there is a sign just to the left of the car, however my complaint is that its not clear the space was a disabled space, not that the signage was rubbish...

Is this still classed as signage?

totallytech

I'm adding this:

5. There is no clear signage indicating a disabled bay.
The bay to the right of the vehicle is crosshatched and yellow which infers no parking at all, the line behind the car (along the roadway) that the driver would have seen walking away is white just like a normal space. Only the line on the passenger side is yellow and the driver wouldn't have seen it until viewing the photos. You have to stand on the other side of the roadway to see the wheelchair symbol under the car (which couldn’t be seen by the driver). There is nothing else to indicate a disabled bay such as signage in front of the bay or a wide area allowing wheelchair access etc. Out of the 7 photos that Norfolk Parking Enforcement took, you can only tell that it is a disabled bay in one photo, standing on the other side of the roadway.

ColliesCarer

tt? Why are you rushing?

Looking back at your thread you only got your POPLA code on 27/4 so will have at least a fortnight before your deadline and appeals can be submitted on line so no need to account for post delays.

(see post #3 of NEWBIES for a link to parking cowboys POPLA checker which will give you the date it must be in by)

Wait for responses to help you refine it

I have to sign off now but will take a look later for you, in the meantime I'm sure others will be along shortly.

Fruitcake

totallytech wrote: »

I'm about to send off my appeal to popla, however I'm still unsure how to say about the signage... there is a sign just to the left of the car, however my complaint is that its not clear the space was a disabled space, not that the signage was rubbish...

Is this still classed as signage?

Signage in my opinion includes signs and symbols painted on the ground. If they were not clear, and you have photo-evidence that it was not clear, then you should include that in your appeal to PoPLA.

Have you taken your own photos from the point of view of the driver arriving at the car park entrance, the route you took to get to the parking space, and the space itself, again from the perspective the driver would have seen as they approached the space?

totallytech

Fruitcake wrote: »

Signage in my opinion includes signs and symbols painted on the ground. If they were not clear, and you have photo-evidence that it was not clear, then you should include that in your appeal to PoPLA.

Have you taken your own photos from the point of view of the driver arriving at the car park entrance, the route you took to get to the parking space, and the space itself, again from the perspective the driver would have seen as they approached the space?

Not yet,

This is one of the photos they have of my car, until I drive back there (its about 40/50 mins away) I can't see the other signage but I doubt looking at this image I'll be able to say the signage wasnt close enough or too high etc... This is the sign

The driver didn't see the image on the ground because there were several cars around him and he was concentrating on making sure he was ok to pull in plus watching another car pull out. Once you are parked there is no way to tell it is a disabled bay, giving you virtually no way to notice your mistake and change bays.

bod1467

I doubt any of that signage wording even complies with BPA requirements never mind DoT guidance.