Total Parking Solutions POPLA

Frev

Hi guys

I have received a charge notice from Total parking solutions (for overstaying by 15mins in a free retail car park). I have already appealed to TPS using the template from the forum and they have rejected it so now we are at POPLA stage.

I have put together the following for the popla appeal and would appreciate feedback before i send it off. Much of this has been informed by information on this site so thank you all!

Thanks



I am the registered keeper of the vehicle which was issued with a PCN by Total Parking Solutions. I challenged this notice on a number of issues and subsequently received a rejection of the challenge. I would like to appeal this decision on the following grounds:

1. Not a genuine contractual fee nor genuine pre-estimate of loss
2. No contract formed due to inadequate signage
3. No landowner contract assigning rights to Total Parking Solutions to enforce contracts with drivers

I would like to expand on the above points as follows:

1. Not a genuine contractual fee nor genuine pre-estimate of loss.

The car park concerned is a free shopping car park limited to 2 hours parking. It is alleged the vehicle overstayed in this car park by the total time of 16 minutes. The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach of terms and conditions must be an estimate of losses flowing from the incident. The BPA AOS Code of Practice states in section B point 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.''
Section B point 19.6 continues, “If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.”
Based on the above I believe that the charge is a punitive amount that was not a contractually agreed parking tariff and bore no relationship to any loss on the part of the operator. POPLA Senior Assessor Chris Adamson has summed up many similar 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.'
TPS cannot change this requirement so I request that they have no option in this instance but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement they may have devised afterwards (since this would not be a pre-estimate).
If Total Parking Solutions cannot provide such evidence, then I request that my appeal is upheld and the charge dismissed.

2. The signage was inadequate so no valid contract was formed.

Having visited the car park in question after receipt of the charge notice it is evident that signage in the car park is not sufficiently prominent as to be visible from a car, let alone one which is negotiating the entrance to the site (in this case particularly high kerbs and railings are present and the entrance is at an extremely acute angle). Lettering on signage is inadequate in terms of location (approximately 8 feet from the ground), and colouring (red on dark blue background). 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. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was or is sufficiently prominent in its signage and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied. It is therefore my conclusion that the signage is wholly inadequate and no valid contract was formed and I request that my appeal is upheld and the charge dismissed.

3. No landowner contract assigning rights to TPS to enforce contracts with drivers.

In their correspondence with me to date, Total Parking Solutions have produced no evidence to demonstrate that they have the necessary legal authority to charge any driver of any vehicle for overstaying at the car park concerned, nor that they have any proprietary interest in this particular piece of land. Accordingly, I require Total Parking Solutions to produce an unredacted, up-to-date and signed copy of the contract or agreement with the person or organisation that contracted them – one which states that they are entitled to pursue these matters through issuing of PCNs and through the courts. I require that this is an actual copy and not simply a document which claims that such a contract or agreement exists. Equally I require Total Parking Solutions to demonstrate that the person or organisation they have contracted with has the legal capacity from the landowner to form such a contract with Total Parking Solutions. Total Parking Solutions should produce an unredacted, up-to-date and signed copy of the contract or agreement between landowner and the person or organisation that contracted Total Parking Solutions.
If Total Parking Solutions cannot provide such documentation, then I request that my appeal is upheld and the charge dismissed.

Northlakes

Have TPS in the rejection of your appeal mentioned Beavis? If so you might need an extra couple of lines of rebuttal.

Frev

No they didn't mention it in their reply.

Northlakes

I would embolden the paragraph headings. Sign as the registered keeper but looks OK to me.
TPS may challenge the appeal and try to use a Beavis justification so come back if that happens.
Other more expert posters will come along with a more critical eye before you send it off.

Guys_Dad

Did they make any reference to what the charge actually is for? Did they mention contractual charge, trespass, liquidated damages or anything like that?

Frev

The original charge notice stated that the duration of stay was 16 mins over the maximum and goes on to say that "in accordance with the terms and conditions displayed and agreed to when the vehicle parked, the payment is due within 28 days" etc. The appeal rejection from TPS states that the duration of stay was "in contravention of the car park's terms and conditions of use"

thanks for any advice anyone can give before i send to popla

Frev

Any more advice or suggestions? Thanks in advance

ManxRed

"in contravention of the car park's terms and conditions of use" = breach of contract (liquidated damages). 100%.

Don't let them try and claim this is a contractual service charge, because that language makes it very very clear that it isn't.

Frev

ManxRed wrote: »

"in contravention of the car park's terms and conditions of use" = breach of contract (liquidated damages). 100%.

Don't let them try and claim this is a contractual service charge, because that language makes it very very clear that it isn't.

thank you - so this ties into my first point and i will add that TPS's wording indicates that they view the alleged parking event as breach of contract and therefore any charge must be a pre estimate of losses flowing from the incident.

Any more advice?