POPLA appeal

thegentleway

Hi,


I received CPN from CPP for "No Permit or Pay and Display".


I have a permit but it was not displayed (printed new one and forgot to put it up).


I appealed to CPP with template in newbies thread as registered keeper and it was unsuccessful:


page 1:
http://i1179.photobucket.com/albums/x386/thegentleway/1_zpssmlwjgac.jpg


page 2:
http://i1179.photobucket.com/albums/x386/thegentleway/2_zpse1s96ih0.jpg


I also received a rejection of invalid invoice:


http://i1179.photobucket.com/albums/x386/thegentleway/rejection%20of%20invalid%20invoice%2009%20apr%202015_zpsp718hupp.jpg


I have checked the POPLA code:

Code summary
Issuing operator: 358
Date code generated: Thu Apr 09 2015
Code sequence number: 001

Deadline information
Your appeal deadline is Thu May 07 2015
You have 18 day(s) remaining for your appeal to reach POPLA


Do I just use this template for my POPLA appeal?

MET - suits a windscreen ticket case where 'no permit displayed' (i.e. the car has a permit) - https://forums.moneysavingexpert.com/discussion/comment/67240987#Comment_67240987



EDIT: Link fixed.

Thanks for your help.


Tom

kensiko

thegentleway wrote: »

Do I just use this template for my POPLA appeal?
MET - suits a windscreen ticket case where 'no permit displayed' (i.e. the car has a permit) - http://forums.moneysavingexpert.com/...=#post67240987

Unfortunately your last link is not working. You can use the templates from post #3 of the stickes and also this post to help draft your POPLA appeal and you should win.

I suggest have a good read on them and use the parts relevant to your appeal and post the letter here just before you send it for others to check for you, redacting private information.

thegentleway

Thanks kensiko,

I have drafted an appeal from the templates, is this suitable?

RE: POPLA CODE- 3580995001

Parking Charge: 800131/500208
Vehicle Reg: XXXXXXX
Operator: Car Parking Partnership (CPP)

I am the keeper of the vehicle which was issued with a PCN for ‘No Permit or Pay and Display’. I challenged this notice on a number of issues. I then received a rejection with regards to the alleged contravention. I would like to appeal this notice on the following grounds.

1. Not a genuine contractual fee nor genuine pre-estimate of loss
2. No landowner contract assigning rights to CPP to enforce contracts with drivers
3. No contract formed by the signage
4. The Notice to Keeper fails to establish 'keeper liability' under PoFA 2012.

1. Not a genuine contractual fee nor genuine pre-estimate of loss
The demand is a punitive amount that was not a contractually agreed parking tariff and bore no relationship to any loss. A parking permit was issued for this vehicle in September 2014 by the University of Warwick. This permit was in force at the time and allows the vehicle to be parked where it was photographed. The Operator would have been in the same position had the parking charge notice not been issued, because the car has a permit.

The notice to keeper and the rejection letter refer to ‘breach of contract/failure to comply’, as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from a parking event. I require the Operator to provide a detailed breakdown of their loss and on what basis this can be their loss at all, when the car was parked with a valid permit. The Office of Fair Trading has stated to the BPA Ltd 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''.

In this case no loss exists so there is no initial sum to pursue, and they certainly 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. The same is true of the parking attendant who is already paid to visit sites and take photos & issue PCNs, and is not significantly diverted from this activity when a car is considered to be parked in breach.

Judge Charles Harris QC in 'A Retailer v Ms B' 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’’

POPLA Senior Assessor Chris Adamson stated on 3rd December 2014 in POPLA decision Reference 6862654003 which is relevant as it is a permit case:

''there is no dispute that the Appellant did in fact possess a permit. Permits are not analogous with pay and display tickets which are bought for an individual stay and represent proof of purchase. In this case the Appellant was a permit holder and so there was no loss in relation to the permit. The Operator has provided no other evidence of any initial loss.''

and also the same Assessor has summed up many decisions thus:

''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. No contract assigning rights to the Operator to enforce charges in the courts contracts or form their own contracts with drivers
The parking notice states that it has been served on behalf of the landowner. I assert that the Operator does not have the legal status nor assigned right to pursue parking charge notices in the courts nor to make contracts with drivers. I therefore require the Operator to supply a copy of the current contract with the landowner (and if their contract is merely with another agent, or indeed merely the Security Services, who do not own the land, then I put CPP to strict proof of their rights to form contracts having been authorised from the landowner).

Furthermore, I require that the Operator demonstrate that they have the right to pursue parking charge notices in the courts and to specifically make contracts with drivers in their own right, rather than this remaining the gift of this landowner. I am not merely asking for proof that this Operator can 'issue PCNs' of course. Anyone can issue a PCN on a windscreen - a caretaker or cleaner could do that but it would not automatically confer them any locus standi to demand sums of money for alleged breach. Hence I need to see the contract itself, not a witness statement, not a site agreement sheet.


3. No contract formed by the signage
I submit that this signage failed to comply with the BPA Code of Practice section 18 and Appendix B. A lack of signs at the entrance to a car park, and unclear wording creates no contract. Since receiving the NTK, I sought out and tried to read the sign which has tiny font, so that the words are barely readable. The sign is not prominent and not reflective. I put CPP to strict proof otherwise; as well as a site map they must show photos. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. CPP signs in this car park are sparse and unclear, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) CPP has no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.


4. The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012
The Notice to Keeper does not specify the 'period of parking'. It states only that the car was seen at 15.08 on the day in question. The period of parking is required by POFA 12 Schedule 4 paras 8(2)(a) and 8(2)(b)).

POPLA Assessor Matthew Shaw has stated that the NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are clear and unequivocal and a matter of statute. Any omission or failure in the NTK wording means there is no 'keeper liability'. There is no case against me at all so it is, at best, surprising and irksome that CPP are pursuing this matter and wasting my time. I expect POPLA will see the significance of an operator trying to pursue a keeper, in a case where no keeper liability can be established by virtue of the operator's own failures.

With all this in mind, I require POPLA to inform the Operator to cancel the parking charge.

Yours faithfully,

XXXXXXXXXXX

thegentleway

More info.


Charge notice:


p1:
http://i1179.photobucket.com/albums/x386/thegentleway/parking%20charge%2010%20mar%2015%201-2_zpscqssa9f9.jpg


p2:
http://i1179.photobucket.com/albums/x386/thegentleway/parking%20charge%2010%20mar%2015%202-2_zpsp47o2jpy.jpg


sign 1 at the entrance, you only see it if you turn left into the car park:
http://i1179.photobucket.com/albums/x386/thegentleway/sign%202_zpsnnluovku.jpg


sign 2, not lit and not reflective:
http://i1179.photobucket.com/albums/x386/thegentleway/sign%201_zpsyspff2xg.jpg

kensiko

Well it looks good to me but I will let others who are more equipped than me to have the final say!

My ticket (and the reason to be on these forums) didn't get this far fortunately. UKCPS backed down after my first appeal
Although I realise I am in the minority.

thegentleway

Can anybody help? Is this appeal suitable for POPLA? 10 days left for my appeal to reach POPLA.

thegentleway

Good news from Popla!
Thank you all for your help!

Ralph-y

well done :j

and thanks for posting up the POPLA appeal .......
would you kindly post it up into the POPLA appeals thread to help other poor souls who dear to commit such hideous crimes

https://forums.moneysavingexpert.com/discussion/comment/68734507#Comment_68734507

Ralph:cool:

thegentleway

Thanks! I've posted it.