Ukpc popla appeal

Jamiek1990

hey guys

I'd just like to thank everyone that has helped me so far in dealing with ukpc and that i could of got so far with out you

so ukpc have declined my appeal (surprise surprise)

just a quick recap

accidentally parked in a permit only bay behind nandos to collect food on a free car park at 20:30 in Dec
didn't see any signs and it was dark
collected food and received a ticket
was in nandos 6-8 mins tops
followed the newbies guide
only said i was the owner nothing else waited for them to get in touch
1 month later
and were here

ive made a draft of my popla appeal and was wondering if someone could have a look and give me some feedback

maybe see something that ive missed ??

it will be greatly appreciated



Re: UKCP PCN, {}
POPLA Code: { }

Dear POPLA Adjudicator,

As a law abiding citizen who always pays his way, I was extremely upset to hear of a £90 ‘parking charge notice’ displayed on the vehicle of which I am registered keeper for.

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. Unreasonable and unfair terms – no contract agreed to pay £90. Inadequate signage or lighting
3. No genuine pre-estimate of loss
4. No standing or authority to pursue charges nor form contracts with drivers

1. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
To date I have not been issued a Notice to Keeper (NTK) by UK PARKING CONTROL. As a Notice to Driver was provided on the vehicle, an NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. This stipulation is laid out in Schedule 4 of the Protection of Freedoms Act 2012 (PoFA).

The alleged infringement occurred on 06/12/2015 and from my understanding the NTK was required to reach me by 31/01/2016. As none of the mandatory information set out by Schedule 4 paragraphs 8 and 9 of the PoFA has been made available to me as Registered Keeper the conditions set out by paragraph 6 of Schedule 4 has not been complied with. Therefore there can be no keeper liability and as a result I request that UK PARKING CONTROL provide evidence to POPLA of who the driver was.

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. This operator failed to serve any NTK at all. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.



2. Unreasonable and unfair terms – no contract agreed to pay £90. Inadequate signage or lighting
The only notices are up on walls, away from the single light source in the car park area, which is not a 'sign' nor does it communicate full contractual terms & conditions. At the time of the contravention it was very dark and no signage was clearly visible by the vehicle. Any photos supplied by UK PARKING CONTROL to POPLA will no doubt show the signage in with the misleading aid of a close up camera with an extremely bright flash which is evidently the case with the evidence provided by UK PARKING CONTROL proof of the infringement. (please see photos provided). The angle may well not show how high the sign is nor the fact the UK PARKING CONTROL signs are one of many pieces of information in the clutter of this free car park. As such, I require UK PARKING CONTROL to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photo-shopping or cropping and showing where the signs are placed among a myriad of other information bombarding without the help of external lighting such as a camera flash or torch.

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.

3. No genuine pre-estimate of loss
The charge of £90 is punitive and unreasonable, contravening the BPA Code of Practice section 19. UK PARKING CONTROL must therefore be required to explain their '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 or damage caused so UK PARKING CONTROL have no cause of action to pursue this charge. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £90”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge “cannot be punitive or unreasonable”.

UK PARKING CONTOL cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe UK PARKING CONTOL are likely to be paid by their client - so any such payment income must be balanced within the breakdown Premier Park Ltd supply and must be shown in the contract, which leads me to appeal point 5 below.

4. 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, UK PARKING CONTROL 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 UK PARKING CONTROL to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between UK PARKING CONTROL 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 UK PARKING CONTROL.


This concludes my POPLA appeal.

Yours faithfully,

{Name of Keeper}

Coupon-mad

Dear POPLA Adjudicator,

As a law abiding citizen who always pays his way, I was extremely upset to hear of a £90 ‘parking charge notice’ displayed on the vehicle of which I am registered keeper for.

I submit the points below to show that I am not liable for the parking charge:
1. [STRIKE]The[/STRIKE] No Notice to Keeper was served [STRIKE]is not compliant with the[/STRIKE][STRIKE] POFA 2012[/STRIKE] - no keeper liability possible under the POFA 2012
2. Unreasonable and unfair terms – no contract agreed to pay £90. Inadequate signage or lighting
3. [STRIKE]No genuine pre-estimate of loss[/STRIKE]This case differs from the Beavis case; there is no legitimate interest which saves this charge from being an unenforceable penalty
4. This case under appeal is more comparable to VINE -V- LONDON BOROUGH OF WALTHAM FOREST; CA 5 APR 2000
[STRIKE]4.[/STRIKE] 5. No standing or authority to pursue charges in the courts in UKPC's name nor form contracts with drivers
6. No evidence that a permit was not displayed


1. [STRIKE]The[/STRIKE] No Notice to Keeper was served [STRIKE]is not compliant with the[/STRIKE][STRIKE] POFA 2012[/STRIKE] - no keeper liability possible under the POFA 2012
To date I have not been issued a Notice to Keeper (NTK) by UK PARKING CONTROL. As a Notice to Driver was provided on the vehicle, an NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. This stipulation is laid out in Schedule 4 of the Protection of Freedoms Act 2012 (PoFA).

The alleged infringement occurred on 06/12/2015 and from my understanding the NTK was required to reach me by 31/01/2016. As none of the mandatory information set out by Schedule 4 paragraphs 8 and 9 of the PoFA has been made available to me as Registered Keeper the conditions set out by paragraph 6 of Schedule 4 has not been complied with. Therefore there can be no keeper liability and as a result I request that UK PARKING CONTROL provide evidence to POPLA of who the driver was.

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. This operator failed to serve any NTK at all. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.



2. Unreasonable and unfair terms – no contract agreed to pay £90. Inadequate signage or lighting
The only notices are up on walls, away from the single light source in the car park area[STRIKE], which is not a 'sign' nor does it communicate full contractual terms & conditions[/STRIKE]. At the time of the alleged (denied) contravention it was very dark and no signage was clearly visible by the vehicle. [STRIKE]Any photos supplied by UK PARKING CONTROL to POPLA will no doubt show the signage in with the misleading aid of a close up camera with an extremely bright flash which is evidently the case with the evidence provided by UK PARKING CONTROL proof of the infringement. (please see photos provided). The angle may well not show how high the sign is nor the fact the UK PARKING CONTROL signs are one of many pieces of information in the clutter of this free car park[/STRIKE][STRIKE]. As such, I require UK PARKING CONTROL to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photo-shopping or cropping and showing where the signs are placed among a myriad of other information bombarding without the help of external lighting such as a camera flash or torch.[/STRIKE]

Unreadable signage breaches Appendix B of the British Parking Association’s [STRIKE](BPA)[/STRIKE] Code of Practice (the BPA CoP) 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.

The BPA CoP also requires that signs must be visible an all terms prominent and legible at night, if an operator enforces terms in the hours of darkness. This was not the case according to the driver, who saw no signs at all in the dark.

Also I would point out that keeper liability under the POFA Schedule 4, requires 'adequate notice of the charge' so that a driver has every opportunity to have terms and the 'parking charge' prominently and unequivocally drawn to his/her attention before parking. This was not the case in this pitch black car park where the terms were illegible and not in a position to be lit by headlights before the act of parking, so no contract was capable of being formed.



3. ...Needs re-writing...Beavis case differences instead, showing this is a penalty

[STRIKE]No genuine pre-estimate of loss
The charge of £90 is punitive and unreasonable, contravening the BPA Code of Practice section 19. UK PARKING CONTROL must therefore be required to explain their '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 or damage caused so UK PARKING CONTROL have no cause of action to pursue this charge. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £90”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge “cannot be punitive or unreasonable”.

UK PARKING CONTOL cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe UK PARKING CONTOL are likely to be paid by their client - so any such payment income must be balanced within the breakdown Premier Park Ltd supply and must be shown in the contract, which leads me to appeal point 5 below.[/STRIKE]



4. This case under appeal is more comparable to VINE -V- LONDON BOROUGH OF WALTHAM FOREST; CA 5 APR 2000

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

'Vine' is comparable to the case under appeal now, because I am also submitting that the driver did not see the signs which is sufficient to succeed in distinguishing the circumstances from those in the Beavis case completely.

No signs seen = no contract formed, as was found in Vine at 40:

''Mrs Vine did not see the sign...that is sufficient for her to succeed on the facts of this case. I would also find, if it were necessary to the decision, that the sign in this case was not sufficiently prominently and clearly positioned and displayed to sustain any contention that she consented to, or willingly assumed, the risk...It was not intrinsically obvious, apart from signs, that the area where Mrs Vine parked was private property. [...] The sign, which Roch L.J. has described, was on the wall beside the second of two bays and was not on the occasion in question visible from the driver's seat of Mrs Vine's car when she parked it ''

This is binding case law, being a Court of Appeal decision far more applicable than the irrelevant 'Beavis case' to a location where a car was parked but the driver had no fair opportunity to learn of the terms by which they would be bound.



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, UK PARKING CONTROL 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 UK PARKING CONTROL to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between UK PARKING CONTROL 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 UK PARKING CONTROL.


6. No evidence that a permit was not displayed

You can write this is it's applicable. Only have this if the UKPC photos are so dark it could be argued you can't see the dashboard clearly enough to be certain there was no permit displayed - and only add this if you did not previously say anything in the first appeal about admitting a lack of permit...!


This concludes my POPLA appeal.

Coupon-mad

I'm sure someone else can assist with re-writing your loss point #3 to replace it with a 'differs from the Beavis case/this charge remains a penalty' argument. Or find it yourself by looking at Salmosalaris' posts about permit car parks.

Show us your final draft once you have found the right sort of words to use and replaced #3 with a point setting this car park as completely different from the circumstances in the Beavis case.

salmosalaris

In this case forget the Beavis , loss or legitimate interest point completely because there is potentially a legitimate innterest in dissuading non permit holders .
However , have you a picture of the sign ? It's unlikely a valid contract has been offered to a non permit holder

Jamiek1990

http://imgur.com/a/jvTWs

theres the photos theyve provided

salmosalaris

The signage states Staff only . Parking contracts are only offered to staff . As the driver was not a member of staff there is no genuine offer of parking to them and without such there can be no valid contract by which they can be bound .

Coupon-mad

All you can read is 'ASHTON MOSS LEISURE PARK' but none of the terms.

And as salmosalaris says, if you could make out the terms in the dark by shining a torch up at it (because the signs are too high to be lit by headlights when driving in) there is no 'offer' licence to park made by UKPC to non permit holders so there can be no breach of contract and it can only be a matter of trespass.

In the Beavis case there are useful quotes about trespass. So that is the way to use that case here.

Jamiek1990

thanks again for you help

could you take a look at this and give me some feed back


thanks

Re: UKCP PCN, { }
POPLA Code: {}

Dear POPLA Adjudicator,

As a law abiding citizen who always pays his way, I was extremely upset to hear of a £90 ‘parking charge notice’ displayed on the vehicle of which I am registered keeper for.

I submit the points below to show that I am not liable for the parking charge:
1. No Notice to Keeper is was served, no keeper liability under POFA 2012
2. Unreasonable and unfair terms – no contract agreed to pay £90. Inadequate signage or lighting
3. This case under appeal is more comparable to VINE -V- LONDON BOROUGH OF WALTHAM FOREST; CA 5 APR 2000
4. No genuine pre-estimate of loss
5. No standing or authority to pursue charges nor form contracts with drivers


1. No Notice to keeper was servied, no keeper liability POFA 2012
To date I have not been issued a Notice to Keeper (NTK) by UK PARKING CONTROL. As a Notice to Driver was provided on the vehicle, an NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. This stipulation is laid out in Schedule 4 of the Protection of Freedoms Act 2012 (PoFA).

The alleged infringement occurred on 06/12/2015 and from my understanding the NTK was required to reach me by 31/01/2016. As none of the mandatory information set out by Schedule 4 paragraphs 8 and 9 of the PoFA has been made available to me as Registered Keeper the conditions set out by paragraph 6 of Schedule 4 has not been complied with. Therefore there can be no keeper liability and as a result I request that UK PARKING CONTROL provide evidence to POPLA of who the driver was.

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. This operator failed to serve any NTK at all. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.



2. Unreasonable and unfair terms – no contract agreed to pay £90. Inadequate signage or lighting
The only notices are up on walls, away from the single light source in the car park area. At the time of the alleged contravention it was very dark and no signage was clearly visible by the vehicle

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.

The BPA CoP also requires that signs must be visible an all terms prominent and legible at night, if an operator enforces terms in the hours of darkness. This was not the case according to the driver, who saw no signs at all in the dark.

Also I would point out that keeper liability under the POFA Schedule 4, requires 'adequate notice of the charge' so that a driver has every opportunity to have terms and the 'parking charge' prominently and unequivocally drawn to his/her attention before parking. This was not the case in this pitch black car park where the terms were illegible and not in a position to be lit by headlights before the act of parking, so no contract was capable of being formed.

3. This case under appeal is more comparable to VINE -V- LONDON BOROUGH OF WALTHAM FOREST; CA 5 APR 2000

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

'Vine' is comparable to the case under appeal now, because I am also submitting that the driver did not see the signs which is sufficient to succeed in distinguishing the circumstances from those in the Beavis case completely.

No signs seen = no contract formed, as was found in Vine at 40:

''Mrs Vine did not see the sign...that is sufficient for her to succeed on the facts of this case. I would also find, if it were necessary to the decision, that the sign in this case was not sufficiently prominently and clearly positioned and displayed to sustain any contention that she consented to, or willingly assumed, the risk...It was not intrinsically obvious, apart from signs, that the area where Mrs Vine parked was private property. [...] The sign, which Roch L.J. has described, was on the wall beside the second of two bays and was not on the occasion in question visible from the driver's seat of Mrs Vine's car when she parked it ''







4. No genuine pre-estimate of loss

According to the BPA code "If the parking charge that the driver is being asked to pay is for an 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"

£90 is clearly not proportionate to a stay in a car park in which the vehicle was allowed to park for free. Neither is it commercially justified because it would make no sense and in any event in was only ruled so in Parking Eye v Beavis in a car park where the operator paid £1000 per week, a case which in any event is being appealed to the supreme court. It is also noted that the judge in Beavis did rule it was a penalty although in that particular car park it was commercially justified due to the £1000 per week paid by the operator. £90 is clearly a penalty. The £90 is not a genuine pre estimate of loss and is extravagant and unconscionable. It is a penalty. It is not an attempt to claim liquidated damages which should be a genuine pre estimate of loss. £90 cannot be so as the figures quoted include business costs.

I require UKPC to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. UKPC cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.

According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner allows free parking for shoppers and several hundred pounds were spent then there is no loss. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''

It was held in Parking Eye v Cargius that Beavis does not apply in a paid car park and that the charge is a penalty.

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, UK PARKING CONTROL 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 UK PARKING CONTROL to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between UK PARKING CONTROL 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 UK PARKING CONTROL

This concludes my POPLA appeal.

Yours faithfully,

{Name of Keeper}

Redx

spelling for a start

UKPC has the right letters in the wrong order at the beginning

point 1) main header , spelling mistake on served

so edit post #8

also some of those sections are in this thread posted today where CM added them in an example appeal, maybe her descriptions fit better than yours ?

https://forums.moneysavingexpert.com/discussion/5434719