Help with POPLA appeal letter

SnowWhiterThanWhite

Hi again,

This is my original post https://forums.moneysavingexpert.com/discussion/5196114

Basically, a windscreen ticket for overstaying in a free 3 hour car park.

There were mitigating circumstances, but from reading advice on this site, I understand best not to even mention this in appeal.

Could you kindly point out anything you think I may have missed?

Thanks all


I am the registered keeper of vehicle registration xxxxxx and I contend that I am not liable for the parking charge and wish to appeal against the notice on the following grounds.

1) Non genuine pre-estimate of loss
2) Unlawful penalty charge
3) Lack of Proprietary Interest & non-compliant Contract with Landowner
4) Proof of driver entering into a contract with Horizon Parking Ltd
5) Notice to Keeper is unlawful

1) Non genuine pre-estimate of loss
POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.

The area was very quiet and no other vehicles were obstructed for the duration. Therefore the parking charge and the parking charge notice cannot be construed as anything but a punitive penalty. For this charge to be justified a full breakdown of the costs Horizon Parking Ltd has suffered as a result of the overstay is required. ‘Business-as-usual’ operating costs, incurred regardless of whether an overstay occurred or not, should not be included. Redress for breaching a contract is based on the principle that the breaching party needs to return the breached party to the same financial position it was in prior to the breach occurring. In this case, there was no difference to the breached party’s financial position prior to, and following the alleged breach.

Your list of 'losses' are almost all incurred regardless of the breach. Depreciation of assets would happen whether or not this 'event' occurred or not.

2) Unlawful Penalty Charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate 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 “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to those that the Police and Council Wardens issue.

3) Lack of Proprietary Interest & non-compliant Contract with Landowner

Horizon Parking Ltd lack of title or assigned interest in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. Nor do they have the legal status at that site, which would give them any right to offer parking spaces on a contractual basis, as they are not the landowner and I have seen no evidence of a compliant contract with the landowner.

I request Horizon Parking Ltd to show proof that they have a relevant, contemporaneous contract with the landowner that entitles them to pursue these charges in the courts in their own name as creditor.
According to the BPA Code of Practice (CoP) any contract must contain the following:

7. Written authorisation of the landowner
7.1. If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.


4) Proof of driver entering into a contract with Horizon Parking Ltd
Horizon Parking Ltd needs to prove that the driver actually saw, read and therefore accepted the terms, which means that I and the POPLA Assessor would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding. The idea that any driver would accept these terms knowingly is beyond credibility.

5) Notice to Keeper is unlawful –
The NTK does not comply with the requirements schedule 4 paragraphs 8 & 9 of POFA 2012 and therefore keeper liability does not apply. The NTK is a violation of the BPA code of practice which requires you to have understanding of the laws regarding parking.

The Protection of Freedom Act under Keeper Liability, has no concept of 'owner'. It's keeper liability for which the registered keeper is assumed to be the keeper unless shown otherwise..

Para 8(2)(a) states that a notice must:
“…specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”
The Notice does not state the period of parking, merely the time of the alleged contravention and charge issue.

Para 8(2)(b) of the Act states that a notice must:
“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;”

The Notice merely states that a Parking Charge Notice was fixed to the vehicle, and remains outstanding. The Operator does not fulfil the requirement to inform the keeper that the driver is required to pay the charge, nor that the charge has not been paid in full.

Paragraph 8(2)(e) of the Act states that a notice to keeper must:
“…state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper –
(i) To pay the unpaid parking charges; or
(ii) If the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver…”

The Notice does not, in a single document, state that the Operator does not know both the name of the driver and a current address for service for the driver and invited the owner to pay the charge or provide this specific driver information. These are clearly separate requirements which must be met separately. Though the Operator has fulfilled para 8(2)(e)(i) and hinted that the owner might provide "driver details", the operator has not fulfilled the other specifics of Para 8(2)(e). The Operator has failed to state that they do not know both the name of the driver and a current address for service for the driver and does not request that specific information. Nor does the Notice notify me to pass on the notice to the driver.

Para 8(2)(g) states that a notice must:

“inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;”

The owner was never informed of such a discounted period and the notice makes it apparent that such discounted period that may have existed is not available to the keeper.
Para 8(7) of the Act states that:
“When the notice is given it must be accompanied by any evidence prescribed under paragraph 10”

Whilst the Notice does state that a “Parking Charge Notice was fixed to the vehicle and detailed above” it provides no evidence at all with the Notice. Para 8(7) is clear; the Notice must include such evidence as required by Para 8(10). The burden of proof is upon the operator and I challenge the Operator to provide clear unequivocal evidence that Para 8(10) of the Act does not require their Notice to provide and include evidence as per Para 8(7).

The Notice to Keeper does not comply with the strict requirements of POFA2012 Schedule 4 and no keeper liability exists.

This concludes my appeal, I respectfully request that my appeal be upheld and the charge be dismissed if Horizon Parking Ltd fail to address and provide the necessary evidence as requested in all of the points highlighted above. I respectfully ask the POPLA assessor to consider my points and evidence and order that this charge be cancelled.

Yours faithfully,