NTK from Parking CSL - POPLA Appeal won

tellytart

Re: Parking Ticketing Ltd PCN, {PCN Reference}
POPLA Code: {POPLA Reference}

Dear POPLA Adjudicator,

As a law abiding citizen who always pays his way, I was extremely upset to hear of a £120 ‘parking charge notice’ displayed on the vehicle of which I am registered keeper for. The vehicle in question was parked in a residential car park and with the permission of the resident who owns the space. The space in which it was parked is for sole use of that resident or their visitors.

How a £120 ‘fine’ can arise from a vehicle legitimately parked with the residents permission is mind boggling.

I submit the points below to show that I am not liable for the parking charge:

1: The notice to keeper is not compliant with the POFA 2012 – no keeper liability
2: The vehicle was parked with permission of the owner of the parking space and no method of identifying legitimately parked visitor vehicles has been provided to the resident.
3: The charge of £120 is in excess of the maximum charge outlines in the BPA CoP
4: No genuine pre-estimate of loss
5: No standing or authority to pursue charges nor form contracts with drivers
6: No contract formed to pay £120 due to unclear sporadic signage where the parking charge is now prominent.

1: The notice to keeper is not compliant with the POFA 2012 – No Keeper Liability
The notice to keeper does not comply with the POFA 2012 requirements. Namely it does not comply with section 8 (2)(g) in that it does not inform the keeper of any discount offered for prompt payment. Therefore the appeal must be allowed as the NTK is not compliant.
2: Vehicle parked with permission of the owner of the space
The vehicle was parked in a residents bay with the full permission of the resident authorised to use that bay. The resident has received no permits or other means from the parking company with which to identify legitimately parked visitors vehicles using the space. This is therefore preventing the resident from quiet enjoyment of his property when the residents legitimate visitors are being targeted in this fashion.
3: The charge of £120 is in excess of the maximum charge outlines in the BPA CoP
The parking charge being demanded is £120. This BPA code of practice reads:
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. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance
This is therefore a punitive and unfair charge on a legitimately parked vehicle and I put Parking Ticketing Ltd to strict proof that (a) they have justified this level of charge to the BPA in advance and received their approval and (b) justify to POPLA why this excessive charge should be permitted.

4: No Genuine pre-estimate of loss
The charge of £120 is punitive and unreasonable, contravening the BPA code of Practice section 19. Parking Ticketing Ltd must therefore be required to explain the charge by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any breach, the cost of parking enforcement would still have been the same and there was no loss of damage caused, to Parking Ticketing Ltd have no cause of action to pursue this charge. Parking Ticketing Ltd must base their figures on a genuine pre-estimate of loss and comply with section 19.6 which states that the charge “cannot be punitive or unreasonable”
Parking Ticketing Ltd cannot include their operation tax-deductible business running costs – for example, costs of signage, staffing and appeals or write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe Parking Ticketing Ltd are likely to be paid by their client, so any such payment income must be balanced within the breakdown Parking Ticketing Ltd supply and must be shown in the contract which leads to point 5 below.
In addition, there can be no loss as this is a car park for the use of residents and their visitors. The resident who owns the space the vehicle was parked in does not own a vehicle, therefore whether the residents space was in use or not, no resident was deprived of their ability to park.
5. No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Parking Ticketing Ltd must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Parking Ticketing Ltd to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between Parking Ticketing Ltd and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Parking Ticketing Ltd.
6. No contract formed to pay £120 due to unclear sporadic signage where the parking charge is not prominent.
No contract can have been formed between the driver and Parking Ticketing Ltd because the signage is inadequate, unlit and the “charge” is not clearly displayed in large lettering. The ruling of Parking Eye v Beavis is irrelevant in this case as the parking spaces are for the enjoyment of the residents, and are not offered as spaces for public parking. A vehicle parking in a space reserved for the resident that the driver is visiting with the permission of the resident is not depriving any other resident of their allotted parking space. Parking Eye v Beavis is only relevant to a public car park with a high turnover of public vehicles.

tellytart

As an addition, can I put anything in the appeal about the residents' lease not mentioning anything about requiring parking permits. (The lease was signed several years ago, and the parking enforcers were only employed in December 2015).

Guys_Dad

tellytart wrote: »

3: The charge of £120 is in excess of the BPA CoP
The parking charge being demanded is £120, which is in excess of the maximum of £100 which is detailed in the BPA codes of practice, and of which the parking company is a member of. This is therefore a punitive and unfair charge on a legitimately parked vehicle.

Sorry to be in pedantic mode, but the BPA code actually reads.

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. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.

So my appeal would read
3: The charge of £120 is in excess of the maximum charge outlines in the BPA CoP

The parking charge being demanded is £120. The BPA Code of practice reads

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. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance

.
This is therefore a punitive and unfair charge on a legitimately parked vehicle and I put the PPC to strict proof that (a) they have justified this level of charge to the BPA in advance and received their approval and (b) justify to POPLA why this excessive charge should be permitted.

I think that carries even more weight.

Coupon-mad

tellytart wrote: »

As an addition, can I put anything in the appeal about the residents' lease not mentioning anything about requiring parking permits. (The lease was signed several years ago, and the parking enforcers were only employed in December 2015).

Yes you can add that, and also I always ask people to look at any paperwork that came with the permit (or any letter or email about the scheme which you must have as it's so recent). Dig that out, it might mention that if you don't display the permit thare 'may be a parking charge' (sometimes they say nothing!) but does it state the AMOUNT of the 'fine'? If not, then include as well, the fact that when permits were allocated they came from the managing agent (not this lot) and nothing informed residents about the sum of the parking charge so the alleged 'contract' to pay £xxx under any circumstances was never communicated adequately, nor consented to at all.

And you appear to have missed out a whole appeal point about: 'no contract formed to pay £xxx due to unclear sporadic signage where the parking charge is not prominent'. YES, we know ''there are signs up'' of course there are, there have to be. Go and look at them! Take a photos. I bet the CHARGE won't be in large lettering and there will be areas of the car park unsigned, get pics of such hotspots and signs beside bins/in dark corners.

tellytart

Thanks Guys Dad - I've amended my letter. (Should I paste the new version, or is it taken as read that I've changed things?)

tellytart

Coupon-mad wrote: »

Yes you can add that, and also I always ask people to look at any paperwork that came with the permit (or any letter or email about the scheme which you must have as it's so recent). Dig that out, it might mention that if you don't display the permit thare 'may be a parking charge' (sometimes they say nothing!) but does it state the AMOUNT of the 'fine'? If not, then include as well, the fact that when permits were allocated they came from the managing agent (not this lot) and nothing informed residents about the sum of the parking charge so the alleged 'contract' to pay £xxx under any circumstances was never communicated adequately, nor consented to at all.

And you appear to have missed out a whole appeal point about: 'no contract formed to pay £xxx due to unclear sporadic signage where the parking charge is not prominent'. YES, we know ''there are signs up'' of course there are, there have to be. Go and look at them! Take a photos. I bet the CHARGE won't be in large lettering and there will be areas of the car park unsigned, get pics of such hotspots and signs beside bins/in dark corners.

I won't have received anything about the scheme as I am not the resident. My vehicle and its driver at the time were visiting said resident. The resident has never received any permits from the landlord or management agent for his parking space.

Redx

a good effort to start with but take note of the comments by guys-dad and coupon-mad above, because they are extremely relevant IN ADDITION to what you have written (or with the guys dad one as a better wording of that BPA CoP point in your existing section)

I would also email aos at the BPA and complain about the NTK being "over" their £100 limit and enclose an unredactes picture of the NTK as proof , because I think DRP have added their own "bit" onto it, I doubt that the signage said £120 which is another reason why you query the signage, making them prove to popla what the signage says and how it relates to this ridiculously high charge

[EMAIL="aos@britishparking.co.uk"]aos@britishparking.co.uk[/EMAIL]

lastly, if you edit post #12 with the amended popla draft you wont need to post it again

otherwise keep posting the latest draft until its deemed fit for purpose

and you need to get this into it too

And you appear to have missed out a whole appeal point about: 'no contract formed to pay £xxx due to unclear sporadic signage where the parking charge is not prominent'. YES, we know ''there are signs up'' of course there are, there have to be. Go and look at them! Take a photos. I bet the CHARGE won't be in large lettering and there will be areas of the car park unsigned, get pics of such hotspots and signs beside bins/in dark corners.

tellytart

I'm waiting on the resident to send me a photo of the signs, which should be today or tomorrow.

He's also made representations to the landlord that they should be calling off this ticket as they haven't provided him with any permits.

Not sure what I should put in response to coupon-mad's point, as neither I nor the driver are the resident, so won't have been party to any communications between the landlord and the resident.

I am drafting a point about the no contract formed section, will post the new letter shortly.

Redx

get all your photos etc, alter your draft, when its completed in full and you are happy to post it, post it below, but dont keep posting half-drafts, make the next one something you consider could be the final draft

tellytart

I've updated the letter in post 12 to include a bit about no contract. Not sure if I'm right in including the ParkingEye v Beavis ruling to state that it doesn't apply in this case?

Edit: Thanks RedX, I think this one is close - will update once I've got the photos from the resident.

Oh, and presumably I'll need a statement from the resident stating they gave permission for my vehicle to be parked in his parking space to back up point 2? Is an e-mail going to be sufficient, or should it be a signed letter?