POPLA appeal and a few question

4stars

My unethical friends have put another one of their notices on a car parked in our allocated parking space. The NtK was duly appealed without naming the driver and a POPLA code was received in return accompanying their rejection.

Making a stink with the management is not (yet) possible as the other half who signed the assured shorthold tenancy agreement is not up for this fight. The lease does guarantee the ‘peaceful enjoyment of the property’ including the right to park in the allocated parking space. Killing it off at POPLA would be the preferred option.

I do have a couple of questions before I post my draft POPLA appeal.

The NtD does not specify a period of parking / observation time. I merely says reason for issue of a CBC is ‘not displaying a permit’ and the charge relates to the period of parking that immediately precedes the issue of this notice’. Does this meet the requirements of POFA?

The main argument would circle around ‘exclusive right to use the flat's allocated parking space’, but after seeing this recent POPLA decision (https://forums.moneysavingexpert.com/discussion/5380716) I am not so sure that this will be the winning appeal point.

Can somebody point me to a suitable post-Beavis POPLA decision on the amount charged by the operator running the CBC model?

Is it worth mentioning a successful pre-Beavis POPLA decision at the same parking space who got upheld based on no loss?

Many thanks.

The_Deep

In my opinion, the Assessor's decision was perverse. He was over-influenced by Beavis v PE and failed to acknowledge the supremacy of the AST, and the tenants' leasehold rights. The difference between an "own space" case and Beavis could not be greater.

BiscuitMuncher

4stars and The Deep...

I'm not giving up easily on this

4stars

Thank you both.

Here are the links for NtD & NtK. Draft appeal has to wait till tomorrow. However, there is no observation time, period of parking and no information about the discount on the NtK.

http://s28.postimg.org/cht2dt2ct/Nt_D.jpg
http://s28.postimg.org/s5u9klhyl/Nt_K_front.jpg
http://s28.postimg.org/pkoox2skt/Nt_K_back.jpg

BiscuitMuncher

Re your photo of the back of the NtK... I notice there is a "Statement of Truth" ! That's good coming from a PPC. You should add a similar clause to your correspondence to them.

Coupon-mad

I think your best bets for beating this lot are on either:

- no landowner authority (making it clear that a site agreement with the managing agent is not proof of authority flowing from the actual landowner).

or

- no contract formed to pay Ethical £100. Within this appeal point you could have:

(a) The fact that the residents signed an assured shorthold tenancy agreement, where the lease does guarantee the ‘peaceful enjoyment of the property’ including the right to park in the allocated parking space. This constitutes a written offer from the flat owner which was accepted and became binding by the action of the resident signing the agreement. The space cannot subsequently be re-offered to the resident at more onerous terms. And a £100 charge did not feature at all in the agreement signed, which was the only contract accepted.

(b) The fact that the permit was offered/supplied to residents without caveat nor warning about paying £100 charge. Did the resident sign anything for the permit or get an email or letter? Does it mention an obligation to display a permit but nothing about £100?

(c) Further and in the alternative, if POPLA believes that residents form a new contract every time they drive in, every day, based on what the signs say each day (a daily 'contract' which is denied), then the signs at this site are placed in dark corners/low on fences and are unlit. Neither the terms nor the sum of £100 is in the sort of 'large lettering' that impressed the Judges in the ParkingEye v Beavis case.

(d) In the POFA 2012, keeper liability is only possible if 'adequate notice' of the parking charge itself (£100) has been provided in advance. In this case that would need to have been drawn to the attention of the resident when signing the tenancy agreement where the space was offered by the owner, as part of the bargain. Failing that, the £100 'charge' (and the £1.75 surcharge too, added for card payments and any debt collector add-ons) needed to be drawn clearly to the residents' attention in another clear way in advance, such as with the information provided with the permit itself - and it was not. Failing that, it would depend on very clear signage with £100 in large lettering, if POPLA believe (which the appellant does not) that residents form a new contract every day and should be expected to check if the signs have changed every moment/every time, when coming and going on site.

(e) If Ethical are arguing that the vehicle was not authorised to be there, then it can only be construed a matter of trespass because there was no offer made to allow the car any licence to park. The Beavis case again supports the appellant's argument in this respect (quote from the Beavis judgment about trespass...these quotes can be found on the forum, I would search for 'Lord Mance trespass' which should find those quotes.

Is it worth mentioning a successful pre-Beavis POPLA decision at the same parking space who got upheld based on no loss?

Probably not, but only if you can argue very clearly to show why this case is not comparable to the Beavis case so the charge remains a penalty in the absence of any commercial justification/clear signs/evidence of loss to support such a disproportionate charge.

You do need to argue that there can be no 'legitimate interest' in a third party contractor penalising legitimate residents for allowing vehicles to be parked in their specifically allocated bay. Use the Beavis case to your advantage and quote from it. Indeed in the Beavis case this was stated at 32:

The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the {parking operator} in the enforcement of the primary obligation. The innocent party can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.

You could argue that this is a straightforward 'damages clause' where interest cannot extend beyond compensation for the breach and you put Ethical to strict proof that this charge at this car park in these circumstances do not fall foul of Lord Dunedin's four tests, as mentioned in the Judgment specifically for an alleged contract such as this one.

Say that this is not a 'complex' contract as was being discussed in the Beavis case, where a free licence was offered to park for 2 hours and the £85 was payable after that. By contrast, in this case - where there already exists asigned contract granting exclusive right to use the flat's allocated parking space - this can only be a penalty with the aim of unjust enrichment for the operator and nothing more.

There can be no legitimate interest in influencing the conduct of the contracting party which can give this operator in these particular circumstances in THIS car park, a right to charge such a high sum which exceeds any restitutionary damages. Indeed no damages are suffered by the landowner and there is no comparable 'commercial' reasoning behind this charge, no requirement for high turnover of spaces in a retail park which was the case in the far more 'complex' contract and arguments put forward in ParkingEye v Beavis.

In fact, the PCN itself assists to differentiate this £100 because it is headed 'contractual breach charge' whereas ParkingEye argued theirs was not a matter of damages for breach. They argued that their charge was saved from being an unenforceable penalty in THAT car park due to a detailed commercial justification argument.

The Beavis case actually shows that a charge such as this £100 can and should be considered against the penalty rule because in such a case the penalty rule indisputably applies and there is ONLY a 'standard' right to recover damages/loss, unless the construction of the contract and other interests (landowner/commercial aspects, etc) save the charge from being penal. It is up to Ethical to show this in detail for this location and this charge, not merely respond by throwing the Beavis case into the ring without showing how it supports their charge.

The Judges at the SC commented:

'the penalty rule is plainly engaged' and

'..deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract' and

'The question whether a contractual provision is a penalty turns on the construction of the contract.'

You could say that the Supreme Court were at pains to rush out a Tweet within 24 hours of the Beavis Judgment being handed down, making it clear that the judgment was unique and applicable only to that case:

https://mobile.twitter.com/UKSupremeCourt/status/661846322417397760

UK Supreme Court– Verified account ‏@UKSupremeCourt

Parking charge “neither extravagant nor unconscionable… taking into account use of this particular car park & clear wording of the notices”

4stars

Thank you very much CM. Your comments are pure gold even though it means I have to rework my appeal. Still plenty of time.

I have included a paragraph covering grace period as their contract with the management agency says "no grace period". (I have a copy from a previous appeal).

"The BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that if drivers are “…parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.” (18.5)

Paragraph 13.3 of the same version of the Code of Practice requires the operator to “specific grace period at a site if our compliance team or our agents ask what it is”.

A picture of the vehicle shows it to be on site for no more than one minutes, unless Ethical Parking Management can prove otherwise. This shows that a grace period was not allowed.

Coupon-mad

Yep that's reasonable to add if the car was only there briefly.

4stars

(b) The fact that the permit was offered/supplied to residents without caveat nor warning about paying £100 charge. Did the resident sign anything for the permit or get an email or letter? Does it mention an obligation to display a permit but nothing about £100?

No it did not mention any of that, but better half has thrown away the letter, so I excluded it from the appeal.

4stars

Many thanks to everyone who has commented so far. Below is my draft POPLA appeal. I am not a native speaker and would welcome any comments with regards to spelling and grammar.


Dear POPLA,

I was issued with a Notice to Keeper on xx/xx/xx but I believe it was unfairly. I declined the company’s invitation to name the driver, which is not required of me as the keeper of the vehicle. As the registered keeper, I appeal the demand for payment for the following reasons:

1) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability
2) Lack of grace period
3) No standing or authority to pursue charges nor form contracts with driver or keeper
4) No genuine pre-estimate of loss – case can be differentiated from Parking Eye-v-Beavis
5) Lack of standing/authority from landowner
6) Unclear, inadequate and non-compliant signage

1) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability

The requirements of Schedule 4 PoFA are quite clear in that there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged debt. The BPA Ltd AOS Code of Practice (version 5, October 2015) supports the need for strict compliance (para 21.5 refers). Ethical Parking Management has however failed to comply with the statutory requirements as followed.

a) In regards to paragraph 8(2)(a) of Schedule 4, PoFA 2012. The 'period of parking' is not 'specified', only the time and date the CBC was issued, with a statement of ‘period of parking that immediately preceded the issue of that notice’. It does not specify the period of parking as demanded under POFA 2012 paragraph 8(2)(a) and paragraph 7(2)(a). In fact the observation time is not specified. The Notice does not state the period of parking, merely the time of the alleged contravention and charge issue.
b) Paragraph 8 (2)(g) requires the operator to inform the keeper of any discount offered for prompt payment. The ‘Notice to Keeper’ fails to offer any discount and is therefore neither in compliance with the strict requirements of PoFA nor with the BPA Ltd AOS Code of Practice (version 5, October 2015) paragraph 21.10. The Operator’s Notice merely informs the owner that a previously extant discount period has expired.

Ethical Parking Management have failed to do comply and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.”

2) Lack of grace period

The BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that if drivers are “…parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.” (18.5)

Paragraph 13.3 of the same version of the Code of Practice requires the operator to “specific grace period at a site if our compliance team or our agents ask what it is”.

I require Ethical Parking Management to provide proof of any grace period allowed and photographic evidence that this period was exceeded.

3) No standing or authority to pursue charges nor form contracts with driver or keeper

The leasehold owner of the flat has an exclusive right to use the flat's allocated parking space (cf. Appendix A for the site plan), and any tenant has his permission to use the space under the terms of the rental agreement. Accordingly the tenant does not require anyone else's permission to use that space, and Ethical Parking Management cannot offer permission to park there as consideration for a contract: that the tenant already has cannot be good consideration. Accordingly neither the tenant nor anyone else permitted to use the space has ever entered into any contract with Ethical Parking Management.

As per the Tenancy Agreement signed and agreed to in July 2013, there is no mention of Ethical Parking Management, nor any other parking company or third party to manage the car park in question. There is no mention of requiring to display a permit to park in the space provided with the property (cf. Appendix B for the relevant extract). The vehicle was parked while observing the requirements of the property tenancy Agreement, therefore, there is no contract between the keeper and Ethical Parking Management.

4) No genuine pre-estimate of loss – case can be differentiated from Parking Eye-v-Beavis

In a previous POPLA appeal (xxx vs. Ethical Group; Ref.Nr: xxx) at the very same location Nadesh Karunairetnam (Assessor) allowed the appeal on the reason that the operator did not ‘justify the charge as a genuine pre-estimate of loss’ and the therefore ‘unenforceable’. For the full decision, please see Appendix C of this appeal.

The Operator may seek to rely on the case of Parking Eye v Beavis as legitimising the charge in this case.

However, the appellant will make the following observations.

The Supreme Court adjudged that the charge in Parking Eye v Beavis could not be considered a penalty, despite the fact Parking Eye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. As a third party contractor, Ethical Parking Management, has no legitimate interest other than penalising residents for allowing vehicles to be parked in their specifically allocated bay.

In the Beavis case this was stated at 32:

The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the {parking operator} in the enforcement of the primary obligation. The innocent party can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.

My case is a straightforward ‘damages clause’ where interest cannot extent beyond compensation for the breach. To use the Beavis judgement to justify the amount charged, I put Ethical Parking Management to strict proof that this charge at this car park in these circumstances does not fall foul of Lord Dunedin’s four test as specifically mentioned in the judgement.

This is neither a complex contract nor was there a free licence offered to park for 2 hours and £85 were payable thereafter. In contrast and as mentioned under point 3 of this appeal, the vehicle was parked while observing the requirements of the property tenancy Agreement, therefore, there is no contract between the keeper and Ethical Parking Management.

There is no comparable ‘commercial’ reasoning behind in this charge in this car park, no requirement for high turnover of spaces or any loss suffered by the landowner. The operator must strictly justify the right to charge a sum higher than the £85 deemed not penal.
In the Beavis case, Parking Eye argued that their charge was not a matter of damages for breach. In my case, the operators charge is ‘contractual breach charge’ and provided photos of signage refer to ‘contractual agreement’.

The Supreme Court made it clear in a Twitter tweet less than 24hours after the judgement was handed down that the parking charge is “neither extravagant nor unconscionable taking into account use of this particular car park & clear wording of the notices”.
In the absence of any similarities with the car park in the Supreme Court judgement, a charge of £100 must be considered against the penalty rule. In my case, the rule indisputably applies and there is only a 'standard' right to recover damages/loss, unless the construction of the contract and other interests (landowner/commercial aspects) save the charge from being penal.

There is no commercially or socially justifiable deterrent value in the charge as the vehicle would have been fully entitled to park and the contractual term is clearly the attempt to impose payment of a large sum in consequence of the loss of a very small sum.

In fact, there is no loss as vehicle would have been fully entitled to park within the exclusive right to use the flat's allocated parking space. The demanded charge is a clearly unenforceable penalty.

I require Ethical Parking Management to provide strict proof that their charge does not fall foul of Lord Dunedin’s four tests and that the Supreme Court Judgement applies to this specific car park to recover damages in access of any loss suffered.

Otherwise, I require POPLA to cancel the charge as it was already established in an earlier POPLA appeal that Ethical Parking Management has suffered no loss and the charge was cancelled subsequently.

5) Lack of standing/authority from landowner

Ethical Parking Management has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Ethical Parking Management to strict proof of the contract terms with the actual landowner (not a lessee or agent). Ethical Parking Management have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves.

They do not own this land and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Ethical Parking Management are entitled to pursue these charges in their own right.

I require Ethical Parking Management to provide a full unredacted copy of the signed & dated contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent.

In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

6) Unclear, inadequate and non-compliant signage

Unreadable signage breaches Appendix B of the British Parking Association’s (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 sufficiently prominent 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. Unlike in the Beavis case, the signs here cannot be considered 'very prominent' and nor is the parking charge itself in large lettering.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

Yours faithfully

4stars

Would somebody be so kind and comment on the draft POPLA appeal. Many thanks.