POPLA Appeal Draft to UKPC

DiddlyN

Just a quick update, I got my NtK yesterday and will be sending off the appeal tomorrow. I will also update this thread with a draft of my POPLA appeal that someone could hopefully check with me

DiddlyN

Hi guys,

The draft of my POPLA appeal is below
A few questions I have on it are:

1. Is the name and number plate of the vehicle needed in the opening statement?
2. I checked the POFA 2012 act but I'm still not sure if in section 4 of my appeal, period of parking refers to the amount of time I was in the car park?
3. My NtK says 'UKPC does not know the name and address of the driver. We therefore invite you the registered keeper to pay the parking charge or provide us with the name and address of the driver'. These seems as if it invalidates section 6 of my appeal. (I only ask this because other UKPC POPLA appeals include this point).

My appeal:

Re: UK Parking Control PCN, reference code xxxxxxxxxx
POPLA Code: xxxxxxxxxxx

I am the registered keeper of the vehicle, ....... and I wish to appeal a recent parking charge from UK Parking Control (UKPC). I submit the points below to show that I am not liable for the parking charge:

1. No genuine pre-estimate of loss
2. No standing or authority to pursue charges, nor form contracts with drivers
3. The signage was inadequate so there was no valid contract formed
4. Non-compliant Notice to Keeper
5. Unreasonable/unfair terms
6. No Creditor identified on the Notice to Keeper



1. No genuine pre-estimate of loss

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.

The UK Parking Control Notice to Keeper alleges 'breach of terms' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at the nearby shops and cafes if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park was almost empty on arrival and when the driver left.

The British Parking Association Code of Practice uses the word 'MUST'. This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach.

I have not received any breakdown of how UKPC calculated there charge and so therefore require UKPC to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. UKPC cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some woolly statement that merely claims that charges were calculated to compensate UKPC for their “losses”.

19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable

The demand for a payment of £100 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.


2. 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, UKPC must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This notice has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that UKPC merely did hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. 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 UKPC to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between UKPC and the landowner. This is required so that POPLA and I can check that it allows this Operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is or was in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.).


3. The signage was inadequate so there was no valid contract formed

The occupants of the car did not see any signs at the time of parking.

I require UK Parking Control to state the height and position of each sign in their response. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. Therefore, it is their own problem in the drafting and positioning of the signs that customers do not see them at all. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of UK Parking Control and so are not expecting to read a contract.

It was dark when the driver parked the car and when I visited the site upon receipt of the parking charge, I saw that the sign is placed high up and is unlit, so that in darkness no signs are clearly visible and the words are unreadable. I put UKPC to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. There is no entrance sign, no lighting on site and the sign is not prominent, not reflective and is not lit by headlights. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area.

No consideration/acceptance flowed to and from both parties, so there was no contract formed.


4. Non-compliant Notice to Keeper - no keeper liability established under POFA2 2012

On the NTK, the 'period of parking' is not shown, only the time of issue of an alleged PCN. The wording makes this a non-compliant NTK under the POFA 2012, Schedule 4. According to Schedule 4 para 8, the Notice must specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.
The NTK is a nullity so no keeper liability exists.


5. Unreasonable/unfair terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states: “18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.” An unlit sign of terms that cannot be seen when parking, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

6. No Creditor identified on the Notice to Keeper

The ‘Notice to Keeper’ does not comply with paragraph 9(2)(h) of Schedule 4 of the POFA 2012 in that it does not identify the creditor. Whilst the Notice has indicated that the operator requires a payment to be made to UKPC, there is no specific identification of the Creditor, who may, in law, be UKPC or some other party. The POFA 2012 requires a ‘Notice to Keeper’ to have words to the effect that 'The Creditor is….' and the Notice does not.


This concludes my appeal and I respectfully request that my appeal be upheld and the charge be dismissed.
Yours faithfully,

---

As a side note my appeal has identical wording to other UKPC POPLA appeals in some places, I doubt this will matter but I just wanted to make sure?

DiddlyN

Would anyone be able to check my POPlA appeal?

DiddlyN

please delete.

DiddlyN

Hello

I have had my initial appeal rejected by UKPC and have now made a second draft of my Popla appeal and I would appreciate any feedback.

I am the registered keeper of the vehicle that was issued a Parking Charge Notice (PCN) with the ref code xxxxxxx by UK Parking Control (UKPC). I submit the points below to show that I am not liable for the parking charge:

1. No genuine pre-estimate of loss
2. No standing or authority to pursue charges, nor form contracts with drivers
3. The signage was inadequate so there was no valid contract formed
4. Non-compliant Notice to Keeper
5. No Creditor identified on the Notice to Keeper



1. No genuine pre-estimate of loss
The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. Parking charges must be based on the loss that is suffered as the British Parking Association (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.
and

19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable
The keeper therefore declares that the charge is punitive and therefore an unenforceable penalty.
The UKPC Notice to Keeper (NTK) alleges 'breach of terms' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at the nearby shops and cafes if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park was almost empty on arrival and when the driver left.
I have not received any breakdown of how UKPC calculated their charge and so therefore require UKPC to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The landowner/occupier would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. UKPC cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some a statement that merely claims that charges were calculated to compensate UKPC for their “losses”.

2. No standing or authority to pursue charges, nor form contracts with drivers
UKPC do not own the land on which the car was parked, 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 a title, UKPC must have an assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. UKPC have not given me a notice that declares this in their rejection of my initial appeal, so I have no proof that such a document is in existence. I contend that UKPC merely did hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. 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 UKPC to strict proof to provide POPLA and me with an unredacted, up-to-date copy of the contract between UKPC and the landowner. This is required so that POPLA and I can check that it allows UKPC to make contracts with drivers and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. I am aware that in some cases a witness statement is used instead of a contract, however this will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). There is also no proof that the alleged signatory on behalf of the landowner has ever seen the relevant contract or, indeed, is even an employee of the landowner. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable, not proving full BPA compliance and is not sufficient to prove UKPC have the necessary legal standing at this location to bring a claim in their own name nor to form any contractual relationship between UKPC and motorists.

3. The signage was inadequate so there was no valid contract formed
At the time of parking and leaving the car park the occupants of the car did not see any signs that mentioned restricted parking.
I require UK Parking Control to state the height and position of each sign in their response. Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. Therefore, it is the fault of UKPC in the drafting and positioning of the signs that the driver did not see them at all. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of UK Parking Control and so are not expecting to read a contract.
It was dark when the driver parked the car and when I visited the site upon receipt of the parking charge, I saw that the sign is placed high up and is unlit, so that in darkness no signs are clearly visible and the words are unreadable. I put UKPC to prove otherwise; and as well as provide a site map they must show photos in darkness taken without a camera flash. There is no entrance sign, no lighting on site and the sign is not prominent, not reflective and is not lit by headlights. Therefore the sign breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area.
A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

4. Non-compliant Notice to Keeper - no keeper liability established under POFA2 2012
The 'period of parking' is not shown on the NTK, only the time of issue of an alleged PCN. Therefore the wording makes this a non-compliant NTK under the POFA 2012, Schedule 4. According to Schedule 4 para 8, the Notice must specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.
The NTK is a nullity so no keeper liability exists.

5. No Creditor identified on the Notice to Keeper
The ‘Notice to Keeper’ does not comply with paragraph 9(2)(h) of Schedule 4 of the POFA 2012 as it does not identify the creditor. Whilst the Notice has indicated that the operator requires a payment to be made to UKPC, there is no specific identification of the Creditor, who may, in law, be UKPC or some other party. The POFA 2012 requires a ‘Notice to Keeper’ to have words to the effect that 'The Creditor is….' and the Notice does not.


This concludes my appeal and I respectfully request that my appeal be upheld and the charge be dismissed.
Yours faithfully,

Crabman

Hi, I've merged three of your threads so all info can be kept in one place.

Kitson

Hi Diddly,

How did you get on with your appeal?

I am about to appeal to POPLA myself!

Umkomaas

Kitson wrote: »

Hi Diddly,

How did you get on with your appeal?

I am about to appeal to POPLA myself!

His draft is only 4 days old, it might not have even been sent to POPLA as yet. It will take POPLA around 5-6 weeks minimum before they make any decision.

Kitson

Didn't check the date properly :doh:

DiddlyN

Yeah it hasn't been sent off yet