Popla nightmare

bod1467

Have you checked Prankster's new POPLA guide in his blog?

http://parking-prankster.blogspot.co.uk/2015/09/new-popla-process.html

ampersand

Understood that had been read as part of remedy for cramming this into new online boxes, bod.

dawn403

ampersand wrote: »

Dawn - suggestion below= 2 thorough hrs. iF ok, You fill in the dimensions/estimates where req'd. 1st person largely eliminated.
The downloads ref'd in this PP entry are the ones to scrutinise and quote further if you want to specify parameters.
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#[/QUOTE]

:T:j Hey Ampersand thank you soo much for doing that, I reeeeally appreciate all your help. (You have restored my faith in humanity hah) I will definitely make the changes you propose but I just wanted to clarify two things; are the words in bold things I need to change or are they intended that way? And where do I find the downloads?

Again, thanks so much.
Dawn

Coupon-mad

Please stop trying to answer POPLA's questions, it doesn't help - I gave up after the first half dozen cases I tried, as the questions are uselessly unhelpful to a keeper appellant.

Just choose 'other' and attach your full appeal (but like hoohoo says, make sure you do attach it!). Show us your full appeal and stop trying to tailor it to what POPLA are asking.

dawn403

Coupon-mad wrote: »

Please stop trying to answer POPLA's questions, it doesn't help - I gave up after the first half dozen cases I tried, as the questions are uselessly unhelpful to a keeper appellant.

Just choose 'other' and attach your full appeal (but like hoohoo says, make sure you do attach it!). Show us your full appeal and stop trying to tailor it to what POPLA are asking.

Hi Coupon-mad
Thank you for your input. I have re-done my appeal in full and I intend to do as you instructed, my final draft is now four pages long (see below).

Dear POPLA assessor,
POPLA reference number: xxxxxxxxx

I am the keeper of the vehicle with registration number xxxxx
On 09/06/2015 I received by mail a Parking Charge Notice to Keeper CP Plus (to be referred to following as CPP) alleging a parking “offence” on 31/05/15, at “Poplar 2000”, and demanding a Charge.

My original appeal on 22/06/15 to the operator CP Plus directly was rejected and I was supplied with a POPLA verification code. I have visited a possible site (a Motorway Service Area) of the alleged offence to gather information and photographs and I contend that as the vehicles’ registered keeper I am not liable for the alleged Charge for the following reasons:


1. A non-compliant, and erroneous Notice To Keeper (NTK), failing to meet the conditions of Paragraph 9 of Schedule 4 of POFA 2012, therefore there is no keeper liability.
2. The signage on the possible site is inadequate and was either not seen or not understood by the driver, so no contract could have been formed.
3. The lack of CP Plus’s proprietary interest in the land at the possible site and no contractual authority from the landowner.
4. Unfair contact terms under the Unfair Terms in Consumer Contracts Regulations 1999.
5. The Charge levied is not a Genuine Pre-Estimate Of Loss, nor is it proportionate or commercially justifiable, and is nothing more than a disguised penalty.
6. ANPR records are not proof of one parking event, and do not show duration of parking.



1. A non-compliant, and erroneous Notice To Keeper (NTK), failing to meet the conditions of Paragraph 9 of Schedule 4 of POFA 2012, therefore there is no keeper liability.

In order to pursue Keeper Liability under the POFA, CP Plus must have met the strict conditions in the Act. However, they have failed to fulfil the requirements of the Notice to Keeper as per Paragraph 9 Schedule 4 of the Act.

The Notice to Keeper is non-compliant under the POFA 2012 for the following reasons:

(A) The period of parking is not specified in the Notice to Keeper, only the times the car was seen in traffic on arrival and on the final time it left that day. There is no evidence of parking at all.

(B) The Notice to Keeper does not 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.

(C) The Notice to Keeper fails to set out any unpaid parking charges for the specified period of parking. POFA requires that a Notice to Keeper describes any unpaid charges which the Driver owed at the time of the issue of the postal Notice to Keeper.

A charge for breach of contract cannot be described as unpaid by the Driver at the time the Notice to Keeper is issued, because it only arises at the time the Notice to Keeper is received. The punitive amount now being pursued for 'breach' should not be confused with the sum intended by Schedule 4 of the POFA. The Act requires any unpaid tariff that the Driver owed before the Notice to Keeper was issued to be stated, and that this is the only sum that can be pursued from a registered Keeper.

(D) The Notice to Keeper does not identify the Creditor. The fact that an Operator's name is on a Notice to Keeper as the payee, does not identify them as the Creditor, as administrative functions such as sending notices and collecting monies can be carried out by other parties. The Creditor has to be identified with words to the effect 'The Creditor is...'.

(E) It also fails to show the geographical address of the client/Landowner. This is a requirement for all consumer contracts, as well as being a breach of the POFA. the Notice To Keeper names the relevant land on which the vehicle was allegedly parked as “Poplar 2000”. Not only is this incorrect, but is not even a valid and fully-formed address and fails to specifically identify the alleged location and/or the land of the supposed parking event and subsequent Charge.

The requirements of Schedule 4 of the POFA as regards the wording in a compliant Notice to Keeper are prescriptive, unequivocal and a matter of statute, not contract law. Any omission, or failure to set out any of the mandatory wording, means there is no Keeper liability. This point alone invalidates their Notice To Keeper (NTK) for lacking clear and concise information relating to the alleged parking event, eliminating their right to claim unpaid parking charges from the keeper of a vehicle under Paragraph 4(2)(a) of Schedule 4 of POFA 2012.

In this case the Driver has not been identified, so the failure of CP Plus to meet the conditions to invoke Keeper Liability means there is no legal basis for the charge to be enforced against me as Keeper.


2. The signage on the possible site is inadequate and was either not seen or not understood by the driver, so no contract could have been formed.

The British Parking Associations’ Code Of Practice (BPA’s CoP) at Appendix B (version 5 as it applied at the time and date of the alleged parking event) sets out the strict requirements for entrance signage:

"The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead" and "There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision. Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material...''

A contract between CP Plus and the Driver could only be formed at the entrance to the site, prior to parking, when the driver is in a position to decide whether or not to enter the car park.

Upon arrival to the possible site, CP Plus have failed to make it adequately clear that parking on this site is subject to a parking management. The signs on this site are small and sparse in number, there is only one parking sign located at or before the entrance to the car park (See photo 1). This sign is located on a tight bend which requires the full attention of the driver. The sign is also located at the exact point where written directional road markings require the driver to immediately decide which direction to take. There is no possibility of a driver reading the small print on a parking sign while focusing on these driving imperatives. I contend that by placing the only entrance sign on a tight bend, where it would patently be dangerous to stop to read the full parking terms, CP Plus are in breach of the BPA Code of Practice Appendix B which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead.

CP Plus’s entrance sign is located in a position where it is surrounded by numerous other signs. Within 15 metres of the CP Plus sign there are several other traffic signs, speed signs, lane direction signs, information signs, advertising signs and written road markings. The CP Plus sign has been positioned in the middle of these. In addition, the print size of the parking terms on CP Plus’s sign is by far the smallest of all the information appearing on any of these other signs, making it the least likely to be noticed by the driver. The small print size means the parking terms could only be read when standing directly in front of the sign.

The signs are not lit or reflective (as per the BPA’s CoP) and are not so prominent that they 'must' have been seen among the myriad clutter of signs, information and architecture in the busy service station area. Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of them and agreed. These factors combine to make the signs difficult to notice and difficult to read. I contend that the poor lighting, the size of the signs and the print size means it cannot be claimed that the signs are so prominent they ‘must’ have been seen and read by the Driver.
I contend that by locating the only entrance sign in a position where it is too dangerous to stop to read the sign, in a position exceptionally cluttered with competing information, with a volume of terms and conditions that is impossible to read while driving in moving traffic, and in a print size that is the smallest of all nearby signs, CP Plus has failed to provide terms sufficiently prominent that they ‘must’ have been seen, read and agreed to by the Driver.

I contend that for the reasons set out above the signage at this Motorway Services Area is not in compliance with the BPA Code of Practice Section 18 and Appendix B.

I contend that the information set out above clearly shows that the signs CP Plus are relying on were not sufficiently prominent or legible that the Driver ‘must’ have seen, read, understood and agreed to their terms. Terms set out on a sign are not imported into a contract unless brought home so prominently that the party 'must' have known and agreed to them. Nothing about these signs, or the terms set out in them, was sufficiently prominent.

I contend 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 in this case. I contend that any parking sign within the car park cannot be claimed to establish terms of a contract with the Driver, as such signs are not available for a driver to see until they have already entered the car park.

The signs do not state that by parking on the possible site forms a contract with CP Plus therefore there can be no possibility of a contract since no consideration can flow between a driver and a site agent. No money/offer/promise/permit or any other tangible nor implied nor executory consideration was capable of being exchanged with CP Plus in this case.

No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal). Lord Denning continued:

“The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling”.


3. The lack of CP Plus’s proprietary interest in the land at the possible site and no contractual authority from the landowner.

The Operator has no standing or authority to form contracts with motorists. CP Plus has not provided me with any evidence that they are lawfully entitled to demand money from a driver or keeper in connection with parking at this site.

CP Plus does not appear to have any ownership interest in the car park, so I contend they have no legal standing to enter into a contract with a driver in their own right, nor any legal standing to pursue charges for breach in their own name. As an agent only, CP Plus has no automatic standing or authority which would meet the strict requirements of section 7 of the BPA Code of Practice.

If CP Plus wish to rely on a contract with the Landowner to claim authority to demand money from me, I must have the opportunity to examine that contract.

I therefore require CP Plus to provide an un-redacted, contemporaneous, signed and dated copy of the contract between CP Plus and the Landowner, which, to demonstrate standing and authority, must specifically state that CP Plus has the right to make contracts with drivers in their own name, that they have full authority to pursue charges through to court in their own name, and that the Landowner allowsCP Plus to charge £90 for a parking contravention. A witness statement to the effect that a contract is in place, which could be signed by someone who may never have seen the actual contract, will not be sufficient because it will not show the terms and conditions relating to the Operator’s authority, nor any restrictions that are in place.

If CP Plus wish to rely on any such contract, I require them to show, on a point-by-point basis, that the contract is in complete compliance with all the requirements set out in the BPA Code of Practice.


4. Unfair contact terms under the Unfair Terms in Consumer Contracts Regulations 1999.

There is no contract between CP Plus and the Driver, but even if there was a contract 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 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.’

The Charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999.
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’.
Regulation 5(2) states: ‘A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’

I therefore put CP Plus to strict proof that their charge is not in breach of Unfair Terms in Consumer Contracts Regulations 1999.


5. The Charge levied is not a Genuine Pre-Estimate Of Loss, nor is it proportionate or commercially justifiable, and is nothing more than a disguised penalty.

This operator must prove the Charge to be a Genuine Pre-Estimate Of Loss(es) that arose directly from the alleged parking event, and not a penalty.
CP Plus’s rejection letter to me states:
“We consider the amount on the PCN as a reasonable charge for liquidated damages in respect of a breach of the parking contract.”

Because CP Plus claim that the Charge is due to a contractual breach, this Charge must represent a claimed Genuine Pre-Estimate Of Loss. No proof has been submitted showing calculation of their Genuine Pre-Estimate Of Loss and/or how it relates to the amount of the Charge levied in their unenforceable facsimile invoice, labelled ‘Charge Notice To Keeper.'

The car park is free to use for two hours, followed by a charge of £16 for the next 24 hours. CP Plus claims the vehicle was parked for 8 hours and 59 minutes. If that had been the case, the maximum loss the Landowner would have suffered from unpaid parking is £16. Any genuine pre-estimate of loss could only arrive at this figure.

CP Plus claims a loss of £100. I require that CP Plus demonstrates precisely how this ‘loss’ figure was arrived at. I require that they clearly demonstrate how each of the elements of their ‘loss’ figure meets the legal requirements to be considered a genuine pre-estimate of a ‘loss’ of this type. CP Plus cannot lawfully include their normal operating costs in a pre-estimate of loss, eg their costs in enforcing parking restrictions at the site, as such costs do not represent a loss resulting from a breach, as, were no breach to have occurred, their costs would have been the same. This principle has been repeatedly stated by POPLA in adjudication.

I require CP Plus to produce documentary evidence showing precisely when this pre-estimate of loss was calculated, and when the Landowner agreed that this amount represented a genuine pre-estimate of loss. I require CP Plus to show that these dates were prior to setting the parking charges at this site.

I contend that the £100 charge is not commercially justified.

CP Plus must explain, quantify and justify the calculations behind this charge. £100 is a sum 'plucked out of the air' by the Operator, bearing no relation to any loss and seems to be commonly chosen by companies because it is the maximum figure the BPA feels is a 'tolerable' amount to impose on motorists, compared with Penalty Charge Notices issued by Councils. The BPA has admitted to the Government that the basis of their maximum charge is Council PCNs. If the BPA maximum charge is based on Council PCNs, then the figure is not a genuine pre-estimate of loss.

The fact that CP Plus have offered to discount the £100 charge by 40% for early payment leads to the inescapable conclusion that £100 is an arbitrary, punitive figure, and not the amount of a genuine loss they need to be compensated for.

I contend that this charge is not a genuine pre-estimate of loss. I contend that the £100 charge is an ‘in terrorem’ sum to deter breach and as such is a penalty, and therefore void, and unenforceable against me.

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977. The Charge levied is not a Genuine Pre-Estimate Of Loss, nor is it proportionate or commercially justifiable, and is nothing more than a disguised penalty. This operator must prove the Charge to be a Genuine Pre-Estimate Of Loss that arose directly from the alleged parking event, and not a penalty.

The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ‘ParkingEye v Beavis’ may have an impact on the outcome of this POPLA appeal.


6. ANPR records are not proof of one parking event, and do not show duration of parking.

The charge by CP Plus is founded entirely on two photographs of the vehicle entering and leaving the possible site to allege that xxxxxx entered and left the car park at specific times, but the ANPR system is not positioned at the entrance/exit of the car park (Photo 2). The exit camera at this site is located at the exit of the service station, not at the exit of the car park. Therefore, the photograph shows the vehicle leaving the motorway service area. The Driver does not believe they parked at this site for longer than the two hours free parking.

If CP Plus wish to rely on these photographs, I require them to provide proof that the two photographs are not the result of two separate visits to the Motorway Services Area or time spent parked. I require CP Plus to provide documentary evidence from a suitably qualified, independent specialist in this technology, certifying that it is not possible that a vehicle entering or leaving the site could be absent from CP Plus’s records due to, for example, the vehicle not being recorded by the camera, the registration number of the vehicle not being legible in the photograph, or any other failure of the system.

CP Plus allege the vehicle overstayed the free parking limit by 6 hours and 59 minutes. However, the location of the exit camera means the alleged entry and exit times show the combined time spent in the car park and in the service station. Time spent in the service station is not time spent parked.

The alleged 8 hours 59 minutes therefore includes any time the Driver spent in the service station undertaking any or all of the relevant tasks: queuing for a fuel pump, refuelling, queuing for the air hose, checking tyre pressure, refilling radiator water, cleaning the windscreen, using the toilet facilities, preparing and drinking a hot drink, eating a snack, perusing and selecting items sold in the service station shop, queuing and paying for the above and any other mitigating circumstances.

I contend that CP Plus have failed to provide evidence that the vehicle was parked in this car park for a period exceeding two hours. I put CP Plus to strict proof of actual parking for a period exceeding two hours.

I require CP Plus to provide full evidence that their ANPR camera system is in full compliance with the BPA Code of Practice and all relevant legal requirements for CCTV data collection.

To reiterate;
- this charge fails to meet the requirements set out in paragraph 19 of the BPA Code of Practice, and fails to comply with basic contract law.
- it is wholly unreasonable to rely on inadequate, non-compliant signage not adhering to statute, with inaccurate or incomplete information
- to attempt to profit by charging a disproportionate sum which is nothing more than a disguised parking penalty
- to present an alleged claim with zero relationship to any supposed genuine pre-estimate of losses caused by a vehicle allegedly parked on land which may or may not be within the legal remit of the operator to manage.

It is my respectful request that this appeal is upheld, and the charge dismissed.

Umkomaas

c 4,000 words, 21,000+ characters, you won't squeeze that into the POPLA website appeals portal.

You need either to crop it down dramatically, or link it to a bullet point list of your appeal points in the website portal with 'please see attached file' then attach a .pdf or .doc file, or send the the lot by post.

Coupon-mad

Yes they will - I send 12 page POPLA appeals every time! Attached as a PDF, under 'other' online - I never post them.

I would say the appeal is very good so far - but needs something about Beavis and the Aziz test, as shown here:

https://forums.moneysavingexpert.com/discussion/comment/69398787#Comment_69398787 787


And the bit about ANPR in your draft appeal confused me a bit - because you can't argue that 8 hrs + was spent getting petrol. It would be better to actually say clearly that it was two visits by the driver, if it really was...? Surely the car wasn't there all day? Say so clearly - keeping it in the third person as you have done.

dawn403

Thanks again for your feedback I really do appreciate all your help (it must get very boring reading all these appeals).
I have copied the bits from my appeal that I have changed, adding in a paragraph about the Beavis and Aziz test as instructed, and I have taken some bits out of point 6.
I did actually spend all day there as I had a flat tire and no spare (and no aa) so I was waiting for a friend to bring me one but I wasn't in the car park, I was in a lay-by within the service station area. I didn't think POPLA would be interested in my little story so I referred to mitigating circumstances.

4. Unfair contact terms under the Unfair Terms in Consumer Contracts Regulations 1999.

There is no contract between CP Plus and the Driver, but even if there was a contract 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 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.’

The Charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999.
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’.
Regulation 5(2) states: ‘A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’

I therefore put CP Plus to strict proof that their charge is not in breach of Unfair Terms in Consumer Contracts Regulations 1999.

In the Barry Beavis v ParkingEye hearing at the Supreme Court in July 2015 the matter of the Aziz test was discussed, relating to the ECJ case: Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5.

The question arising from that binding case is whether a term would have been agreed, had the parties sat down with a blank sheet of paper and negotiated the term in advance. I can state as an indisputable fact that the driver would without a shadow of doubt, never have agreed to this term, had it been negotiated in advance and if we knew then what we know now the driver would never have entered a CP Plus run car park and never will again.

.....

6. ANPR records are not proof of one parking event, and do not show duration of parking.

The charge by CP Plus is founded entirely on two photographs of the vehicle entering and leaving the possible site to allege that PL02LGF entered and left the car park at specific times, but the ANPR system is not positioned at the entrance/exit of the car park (Photo 2). The exit camera at this site is located at the exit of the service station, not at the exit of the car park. Therefore, the photograph shows the vehicle leaving the motorway service area.

If CP Plus wish to rely on these photographs, I require them to provide proof that the two photographs are not the result of two separate visits to the Motorway Services Area. I require CP Plus to provide documentary evidence from a suitably qualified, independent specialist in this technology, certifying that it is not possible that a vehicle entering or leaving the site could be absent from CP Plus’s records due to, for example, the vehicle not being recorded by the camera, the registration number of the vehicle not being legible in the photograph, or any other failure of the system.

CP Plus allege the vehicle overstayed the free parking limit by 6 hours and 59 minutes. However, the location of the exit camera means the alleged entry and exit times show the combined time spent in the car park and in the service station. Time spent in the service station is not time spent parked.

I contend that CP Plus have failed to provide evidence that the vehicle was parked in this car park for a period exceeding two hours. I put CP Plus to strict proof of actual parking for a period exceeding two hours.

I require CP Plus to provide full evidence that their ANPR camera system is in full compliance with the BPA Code of Practice and all relevant legal requirements for CCTV data collection.

Coupon-mad

I did actually spend all day there as I had a flat tire and no spare (and no aa) so I was waiting for a friend to bring me one but I wasn't in the car park, I was in a lay-by within the service station area. I didn't think POPLA would be interested in my little story so I referred to mitigating circumstances.

You could try contacting the Manager at MOTO though, they can cancel these and that description is something they can consider. Just make sure you still call yourself the keeper or describe yourself as 'an occupant of the car'.

I think your POPLA appeal is ready to go. Look out for the evidence pack which CP Plus will email or post to you because you only get 7 days to respond to POPLA with comments.

dawn403

Coupon-mad wrote: »

You could try contacting the Manager at MOTO though, they can cancel these and that description is something they can consider. Just make sure you still call yourself the keeper or describe yourself as 'an occupant of the car'.

I think your POPLA appeal is ready to go. Look out for the evidence pack which CP Plus will email or post to you because you only get 7 days to respond to POPLA with comments.

Thank you Coupon-mad. I didn't think of that, I guess I didn't think anyone would believe me and would think I was just trying to wriggle out of a fine so I just came on here and followed the usual appeal process.

I appealed to CP Plus back in June and I didn't receive any evidence pack? :question::shocked::huh: