UPDATED: How to appeal PCN if not the driver?

Johno100

Feral_Moon wrote: »

I've checked the code on the parkingcowboy website, as instructed in post #3 of the sticky thread and I've got just 17 days left to appeal. Presumably there was a delay in the postal system

Either that or they are 'pre-generating' POPLA codes and delaying issuing them in order to reduce the size of the appeal window and thus the number of POPLA appeals they have to deal with and pay for.

Umkomaas

Check the date on your rejection letter. Your POPLA deadline (via the code) should be 28 days from then.

If it's significantly adrift complain to the BPA that the PPC is not abiding by the requirements of the BPA CoP (and copy in the DVLA). Send copy of the rejection letter to both. The BPA rattling a PPC's cage can cause them to drop the charge.

Do all the above in parallel with researching and drafting your POPLA appeal (not instead of).

Feral_Moon

No, the dates do match (July 20th) but for some reason I didn't receive the letter until yesterday (July 31st) so I now have until 17th August to submit.

I'm not sure where to start in drafting the POPLA appeal letter as I've found several examples but none of which really fit to my circumstances as it seems others have some sort of evidence to present on why they shouldn't have received the PCN. I was hoping to rely on the GPEOL but I read last night that this is no longer sufficient on its own.

I did rather a lot of reading last night but now feel even more confused than ever, and rather overwhelmed. I'm guessing there isn't a one size fits all template to use with POPLA? .

Umkomaas

Feral_Moon wrote: »

No, the dates do match (July 20th) but I didn't receive the letter until yesterday (July 31st)

Any date stamp on the envelope? First or second class post?

Feral_Moon

Umkomaas wrote: »

Any date stamp on the envelope? First or second class post?

No, it's just a generic white UKMail envelope, nothing printed on it. Even the return address is directed to UKMail office and not UKPC.

Feral_Moon

I'm just a little worried that if I fail the POPLA appeal then I will have lost the right to pay the £60 instead of £100 and my health isn't up to fighting further or going to court so I'd have no choice but to give up and pay up at that point

Umkomaas

Just get your POPLA appeal draft up here and we'll check it over. Hardly anyone loses at POPLA with a forum guided appeal.

Here's where you should look:

NEWBIES sticky post #3
+
How to win at POPLA:

http://forums.moneysavingexpert.com/showpost.php?p=62180281&postcount=15
+
POPLA Decisions

https://forums.moneysavingexpert.com/discussion/4488337

Read these decisions from the most recent backwards to get a feel for the appeal points on which POPLA Assessors are currently upholding appeals.

Feral_Moon

Thanks for very useful info

I've read through info about keeper liability at http://www.parkingcowboys.co.uk/keeper-liability/ as this applies to me as I wasn't the driver. Both the PCN and NTK appear to be compliant with POFA 2012 (sched 4) apart from one point:-

- the period the car was parked.

Both the "vehicle first seen" and "issue time" on the PCN are the same. So it doesn't state how long the vehicle was actually parked. Would this be a valid point to use?

The PCN was issued on a Sunday evening on an industrial estate on private land, whereby no business units were open and the actual unit the car was parked near has been empty for quite some time, maybe a year or more. So parking there would cause no financial loss to either landowner or potential business owner. I don't know whether any of these points could also be raised?

This is the area in question....

Feral_Moon

Ok guys, thanks to all you wonderful people on this forum posting incredibly helpful advice, i now have my first draft copy of appeal. There's one paragraph I'm uncertain whether to include (highlighted in blue) so would appreciate advice on this, or indeed anything else you feel I should either omit or include.

Cheers :beer:


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


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 standing or authority to pursue neither charges, nor form contracts with drivers
2. The signage was inadequate so there was no valid contract formed
3. Non-compliant Notice to Keeper
4. No Creditor identified on the Notice to Keeper
5. Unreasonable / unfair terms
6. No genuine pre-estimate of loss


1. No standing or authority to pursue neither charges, nor form contracts with drivers.
I believe that UKPC has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, or 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. This notice has not been produced by UKPC in their rejection statement; therefore 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 or 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 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. 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.).


2. 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.

The driver saw no visible parking notices on entering the industrial estate and parked in a disused unit parking area. The fact almost all the other parking bays were also occupied indicated to the driver that this was an acceptable and permissible area of parking that would not cause any inconvenience or obstruction to any operable business on the site.

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.

3. 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.

4. 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. By definition “the creditor” means a person who is for the time being entitled to recover unpaid parking charges from the driver of the vehicle".

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.

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. 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 car was parked under the instruction of a resident, parked in good faith displaying the Visitor Permit and in a Visitor bay.

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 genuine pre-estimate of loss
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 proportionate and commercially justifiable.

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 car was parked in the car park of an empty industrial unit, namely Unit 10 Clifton Road Industrial Estate, Cambridge and therefore no parking or commercial revenue is to be lost.

The BPA Code of Practice uses the word ‘MUST’. UKPC 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 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 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.

In addition, the charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. The UKPC make reference to the Supreme Court’s decision in the ParkingEye vs Beavis case and how they believe it will have an impact on the outcome of this POPLA appeal. I would argue that Mr Beavis overstayed in a busy commercial car park which Parking Eye paid the Landowner £52,000 a year to farm.

The UKPC have no financial interest in this private residential car park, and there is no commercial justification for this charge.
If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case should it have any bearing on the outcome.

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

Feral_Moon

Hi, I appreciate it's the weekend so no doubt people don't want to get bogged down reading POPLA appeal drafts but I just wondered whether anyone has had time to cast an eye over the above just to reassure me I'm on the right track with it.

I'm ok for time as my deadline isn't until 17th August so no urgency but I assume I will need to send this via post rather than email so will need to allow adequate postage time. It did, after all, arrive with me 10 days late!