Pcn & ntk

Gfrancis1989

They state that the decision is final and they won't respond to any other letters unless there is more evidence.

They also say "you parked" when I wasn't saying I was driving, I mentioned I was keeper of car and that's all.

Coupon-mad

Gfrancis1989 wrote: »

They state that the decision is final and they won't respond to any other letters unless there is more evidence.

They also say "you parked" when I wasn't saying I was driving, I mentioned I was keeper of car and that's all.

What amateurs, and they can't spell = what is a 'PARKING CONTREVATION'?!

http://s10.postimg.org/uu94f75e1/image.jpg

http://s10.postimg.org/m1s5rik95/image.jpg

http://s10.postimg.org/8jl9f883t/image.jpg

The signage evidence is worth making your first appeal point because in the third rejection letter they've shown a sign (by their own admission) 'from around the said location' but no evidence it was visible from a driver's seat or even on the same side of the roadway.

In the other rejection letters they showed no signs did they?

Copy and crop a screenshot of that unreadable high sign and embed it in your word document POPLA appeal(s) as you write about the illegible signs. As often is the case, the PPC's own photo is damning, so use it. Their own picture shows the only words you can read in full are 'pay and'...the rest (even the word display) can't be read in real time at the site and anyway, someone who is a resident and told that parking was available when they moved in, would have no obligation or reason to read any sign purporting to be about those who need to 'pay and display' even if they saw a sign (which is denied).

Also where is any evidence of conspicuous and obvious pay and display machine there? Can't see one near the car in any photos.

Use the BPA CoP about the size of font against them, like in Nathan_A's winning POPLA appeal shown this week in 'POPLA decisions'. His was a different PPC but look how to use the 'small print' font size of their so-called contract terms in a way to make POPLA agree with you that the driver cannot be expected to have seen and read that from the driver's seat before parking (also it's far too high).

Show us your POPLA appeal draft.

You can use the same one x 3 times but if I were you I would actually out them in on different weeks, to test POPLA and see how consistent they are (e.g. two wins and one loss, you could complain about the loss not being consistent with the two wins, if you use the same appeal and evidence and the PPC respond the same to each).

You can find recent examples of POPLA appeals by searching the forum for 'Vine Waltham Forest' where I have tried to steer POPLA away from the Beavis case and instead to consider other binding case law, relevant to a situation where (unlike in Beavis) any contract terms were NOT seen.

Why on earth are residents required to pay and display every day?!

Have you been sent any agreement to sign or information about that, saying that resident cannot park without a daily payment?

Gfrancis1989

Thanks again,
We moved in and the tenancy was signed on the "verbal" agreement there will be some sort of parking.

There are 2 pay and display machines but they are on the entrance of the road and I live at the end.

I'll search through the forum as you suggested but tbh my partner and I are so stressed with this we are close to caving in and paying up.

We want to buy our own place in about 5 months and we have seen things like this cam affect credit ratings

Umkomaas

This won't affect your credit rating - you're over-stressing unnecessarily.

It would need to end up in court, with costs awarded against you with an order to pay made by the Judge and you refuse/fail to pay within the deadline set (28 days). Only then could your credit rating be affected.

But this is very easily winnable at POPLA, so never any need to worry yourself about court, CCJs or credit ratings.

Gfrancis1989

Ok, thank you again.

I'm drafting up a POPLA appeal now.

Any tips?

Gfrancis1989

How is this:

POPLA REF XXXXXXXXXX

CAR REG XXXXXXX

As the registered keeper of the car mentioned above I would like to appeal and have cancelled the parking charge notice issued by Capital Carpark Control for a number of reasons outlined below:

1. Capital Carpark Control has no contractual authority
2. Keeper Liability Requirements and the Protection of Freedom Act
3. No Contract was entered into between the Capital Carpark and the Driver or Registered keeper
4. Unfair terms of contract
5. Without a contract
6. Non BPA compliant signage


1. Capital Carpark Conrol has no contractual authority

In the notices they have sent me Capital Carpark Conrol have not shown any evidence that they have any proprietary interest in the car park/land in question. Also they have not provided me with any evidence that they are lawfully entitled to demand money from either driver or keeper. It would seem that they do not own or have any interest or assignment of title in the land. I can only assume instead they are agents for the owner/legal occupier instead. I submit therefore that they do not have the necessary legal right to make the charge for a vehicle using the car park. I require Capital Carpark Conrol to provide a full, up-to date and signed/dated contract with the landowner (a statement saying someone has seen the contract is not enough). The contract needs to state that Capital Carpark Conrol are entitled to pursue matters such as these through the issue of Parking Charge Notices and in the courts in their own name. I clarify that this should be an actual copy and not just a document that claims a contract/agreement exists.

2. Keeper Liability Requirements and the Protection of Freedom Act

As keeper of the vehicle, I decline, as is my right to provide the name of the driver of the vehicle at the time in question. As the parking company have neither named the driver nor provided any evidence as to who the driver was I submit that I am not liable to any charge. In regards to the notices I have received Capital Carpark Conrol has made it clear that it is operating under Schedule 4 of the Protection of Freedom Act but has not fully met all the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore in relation to this point only pursue the driver.

I would like to point out that Schedule 4 paragraphs 8 and 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. The Act clearly states that the parking charge notice to keeper should invite the registered keeper to pay the outstanding parking charge (or if he/she was not the driver, to provide the name and address of the driver and pass a copy of the notice on to that driver). In their parking charge notice letter at no point did they actually invite me as the registered keeper to pay the parking charge. Instead they imply that my only choice is to give up the name of the driver of the vehicle (when in actual fact I am under no legal obligation to do so). The wording of the PCN actually makes it sound like I have little choice but to give up the driver and does not actually state the choice to pay it myself.

3. No Contract was entered into between the Capital Carpark Conrol and the Driver or Registered keeper

Although I was not the driver I would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. Capital Carpark Conrol clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed.
It is surely the responsibility of Capital Carpark Conrol to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require Capital Carpark Conrol to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park. I would specifically like them to look into how clear the signs are including the height of the signs and font size.

Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.

I request that Capital Carpark Conrol provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.

4. Unfair terms of contract

Although there is no contract between Capital Carpark Conrol and the driver (or myself as keeper), if there were then I would ask POPLA to consider this charge to be unfair and non-binding based on the Unfair Terms in Consumer Contracts Regulations 1999. There is a clear list of terms that apply. I have highlighted the following specifically as I believe they apply directly to this case:

2. (1) (e) Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.

5. (1) 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.

5. (2) 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.

The Unfair Terms in Consumer Contracts Regulations 1999 was brought in to protect consumers from unfair contracts such as the one ParkingEye Ltd are suggesting. A company such as Parking Eye needs to actually prove that the driver saw, read and accepted the terms, which is impossible because this did not actually happen.

5. Without a contract

Without a contract it would seem the most appropriate offence would be a civil trespass. If this were the case, the appropriate award Capital Carpark Conrol could seek would be damages. As there was no damage to car park there was no loss to them at all and therefore should be no charge.

6. Non BPA compliant signage

The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver

Following receipt of the charge, I have personally visited the site in question. I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. Furthermore, the signs are not lit which renders reading them at night impossible. As at the time the Parking Charge was incurred (05/01/16 at 21:47) it was dark and therefore not possible to see any signs which is not compliant with the BPA standards, although in the images they have taken it appears light as they had a camera flash.

The Operator needs to show evidence and signage map/photos on this point - specifically showing the height and lighting of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator 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, rather than simply the nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

For the above, please see these examples of the inadequate signage:
(Using Capital Carpark Controls image sent to me in my appeal rejection)

hxxp://s28.postimg.org/sc2ejlegt/image.jpg

This shows how high the sign is and also how small the text is, unable for anybody to read clearly.


I respectfully request that this parking charge notice appeal be allowed and await your decision.

Gfrancis1989

I've done the same for the 2nd but the 3rd i noticed something different.

7. Wrong location detail
As you can see in these images, the PCN was issued at CXXX. Capital Carpark Control’s rejection letter referred to the location as GXXX XXXX – PXXX XXX.

Of course I added images, not sure if that will help at all.

Should I send?

Coupon-mad

Hang on, let us have a chance to comment over the entire weekend.

Nothing will change in terms of the POPLA appeals if you give us a chance to look at this and advise first - do not rush. These appeals need to be put in on separate weeks anyway, as I suggested before, to try to get different Assessors for each in the hope of getting 3 wins or 2 out of 3, not one clueless untrained newbie Assessor handling them all at once.

I can see stright away that you have found an OLD template because you have got the seriously annoying (because it keeps cropping up and should never have sen the light of day at all) 'without a contract' point in there which has no point. Never did! And the unfair terms point is not helpful to you. You need to distinguish the case from the Beavis case and use Vine v Waltham Forest to your advantage.

Search the forum for 'vine'. Find far more recent POPLA appeals than that one.

Gfrancis1989

Ok, thanks.

Coupon-mad

We will comment, give us time over the weekend.