Motorbike Flash Park Ticket.

Coupon-mad

Flaskpark?

nickham

In conclusion, considering all the points which I have put forward above and all the trouble that this has caused me I feel that it would be appropriate to deal with this accordingly.

nickham

Hi, I am back and FlashPark have provided me with a new Popla code with a date on this letter this time. Below is my updated appeal... Is this enough etc? Thanks

1) The charge can’t relate to any loss caused, nor is proportionate or commercially justifiable.

The motorcycle was parked in such a way as to cause absolutely no damage or obstruction and therefore no loss arose from this incident. Additionally, Flash Park’s 3 digital photographs of the motorcycle in situ demonstrate vacant space nearby and around me so no denial of revenue can be claimed.

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

Flash Park’s charges are outrageously disproportionate, indeed punitive in nature and intent. Moreover, the charges are entirely unjustifiable from a commercial perspective, other than merely to charge as much money as they think they can get away with.


2) Lack of standing/authority from landowner

Flash Park 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 Flash Park to strict proof of the contract terms with the actual landowner (not a lessee or agent). Flashpark 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 car park (the local council do) 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 Flash Park are entitled to pursue these charges in their own right.

I require Flash Park to provide a full copy of the contemporaneous, signed & dated (unredacted) 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 outrageous 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.

3) Inappropriate/lack of signage - no contract with driver

The alleged breach took place in a drive way outside Sainsbury’s Kew Bridge. Having subsequently visited the site, the one and only sign to the carpark is barely noticeable as it is not only small but within shrubs and greenery. Indeed, the text is so small as to render the sign unreadable and unremarkable. The sign is insufficiently eye-catching to give one cause to revisit after parking. I believe Flash Park have done this quite deliberately so as to have the claim afterwards that signage is provided, but in the full knowledge all the while that it is highly unlikely that its message will be recognised or noted by drivers.

I require Flash Park to prove beyond any doubt that there was a suitable sign, meeting the requirements of the law, within the clear line of sight of the driver on the driver’s walking route from the exact position of the parked motorcycle and the entrance that the driver used to the shop on that day.

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver of this vehicle cannot have seen any clear, unambiguous sign; there was no consideration/acceptance and no contract agreed between the parties. In their rejection of my appeal, Flash Park assert that I was the driver (when no such information has been passed to Flash Park) that by merely entering the carpark “I” agreed to the terms and conditions. This is an utter nonsense, requiring a driver, even one with full faculty and cognition, to have agreed to terms and conditions upon entry and before having become aware of signage or read and understood the terms and conditions.


4) The operator has not allowed for the BPA's mandatory Grace Periods

In the BPA Code of Practice:

13 Grace periods
13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

I indeed left within my grace period however they issued me the parking fine within that time.

Coupon-mad

Drop point 1 completely; you cannot argue 'no genuine pre-estimate loss' in 2016. If you try, it hands the advantage to the parking firm who can easily rebut that and POPLA will take their side on that one (following ParkingEye v Beavis in the Supreme Court).

Read some more recent ones by searching 'POPLA 7.3' (as that will find drafts with 7.3 of the BPA CoP quoted in the no landowner authority section. They'll be newer and the wording more thorough than the older one you've based your draft on.

http://tinypic.com/view.php?pic=2dj2qhf&s=9#.VvqpYPkrLIU

Re the sign, make sure you include your best picture that shows a lack of sign visible! Streetview or whatever argues your case best. I can't look at the link on this PC but, was it a sign forbidding parking? I seem to recall it was?

If so, search the forum for 'POPLA forbidding sign' and read some recent ones where there is a point made that a contract/licence to park cannot flow from a forbidding sign as there is no offer made, no consideration flows between the parties. Therefore the Beavis case cannot apply, this is a matter of trespass only, a matter for the landowner alone..blah blah (you will find some good wording on someone's recent POPLA appeal, when you search).

nickham

I'm trying to search Popla 7.3. It's not adding the 7.3 as a keyword and when i search it without Popla the search comes back with nothing. What am I doing wrong?

The link below is a better picture of the sign. Is that a forbidding sign?
http://tinypic.com/r/ipoyhj/9

Thanks

Coupon-mad

Yes, it says 'no parking' like this one:

http://parking-prankster.blogspot.co.uk/2016/04/pcm-uk-signage-does-not-create-contract.html

Use the above info and find a thread here already talking about forbidding signs. You need some clear wording to explain to POPLA what I mentioned above - that this sign with this wording, cannot form a contract 'Beavis-style' between a driver and non-landowner because it prohibits parking, offers no licence so the elements of a contract are simply not there. This is a penalty.

Even worse, it is in a flowerbed and makes no attempt to show the boundary or area it relates to (can't be the flowerbed!). Nor can a motorbike rider see that sign from the side or back so without markings or other signs on the pavement area how would they know parking is forbidden, even to shop?


Re the landowner authority point, just add this (7.3 from the BPA CoP, easy to Google):


In addition, Section 7.3 of the BPA CoP states:

“The written authorisation must also set out:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) Who has the responsibility for putting up and maintaining signs
e) The definition of the services provided by each party to the agreement.''

I put the operator to strict proof of compliance with all of the above requirements.

nickham

This is my updated draft taking in the points you have said. Is this enough to send?

2) Lack of standing/authority from landowner

Flash Park 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 Flash Park to strict proof of the contract terms with the actual landowner (not a lessee or agent). Flashpark 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 car park (the local council do) 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 Flash Park are entitled to pursue these charges in their own right.

I require Flash Park to provide a full copy of the contemporaneous, signed & dated (unredacted) 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 outrageous 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.

In addition, Section 7.3 of the BPA CoP states:

“The written authorisation must also set out:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) Who has the responsibility for putting up and maintaining signs
e) The definition of the services provided by each party to the agreement.''

I put the operator to strict proof of compliance with all of the above requirements.

3) Inappropriate/lack of signage - no contract with driver

The alleged breach took place in a drive way outside Sainsbury’s Kew Bridge. Having subsequently visited the site, the one and only sign to the carpark is barely noticeable as it is not only small but within shrubs and greenery. Indeed, the text is so small as to render the sign unreadable and unremarkable. The sign is insufficiently eye-catching to give one cause to revisit after parking. The sign does not attempt to show the boundary or area it relates to; where it is placed it could be relating to the area in the flowerbed! I believe Flash Park have done this quite deliberately so as to have the claim afterwards that signage is provided, but in the full knowledge all the while that it is highly unlikely that its message will be recognised or noted by drivers.

I require Flash Park to prove beyond any doubt that there was a suitable sign, meeting the requirements of the law, within the clear line of sight of the driver on the driver’s walking route from the exact position of the parked motorcycle and the entrance that the driver used to the shop on that day. I would like to 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.


A notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver of this vehicle cannot have seen any clear, unambiguous sign; there was no consideration/acceptance and no contract agreed between the parties. In their rejection of my appeal, Flash Park assert that I was the driver that by merely entering the carpark “I” agreed to the terms and conditions. This is an utter nonsense, requiring a driver, even one with full faculty and cognition, to have agreed to terms and conditions upon entry and before having become aware of signage or read and understood the terms and conditions.



And I would also like to add There cannot be a breach of any contract when the terms are forbidding and making no offer. This is because - offer, consideration flowing between BOTH parties and acceptance of terms - are the essential elements of any contract, without which there can be no 'breach of contract'.



4) The operator has not allowed for the BPA's mandatory Grace Periods

In the BPA Code of Practice:

13 Grace periods
13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

I indeed left within my grace period however they issued me the parking fine within that time.

Coupon-mad

Not sure about grace period when it's a place you are not permitted to park. Only saying this because POPLA will pick up on the line I've put in bold, which discounts the point you've tried to make:

4) The operator has not allowed for the BPA's mandatory Grace Periods

In the BPA Code of Practice:

13 Grace periods
13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

I indeed left within my grace period however they issued me the parking fine within that time.

And you need a bit more, about the Beavis case so if it were me I would replace 'grace periods' completely because I don't think it will wash in this case in a place you are not 'allowed' to park.

I would have this instead:


4) This event can only be a matter of trespass, absent any contract/licence to park. This penalty is not saved by 'ParkingEye v Beavis'.

The Beavis case reconfirmed what was already trite law in this respect, holding as fact that neither damages nor trespass are situations where a non-landowner private firm can charge a disproportionate sum. The charge under consideration by the Supreme Court was only saved from the penalty rule due to specific facts including the vital element of agreement between the parties and the offer and acceptance of a 'valuable' licence to park.

Here, no such contract or licence was offered at all by the prohibition on the sign (terms were not in fact seen, but there was no offer communicated in any case). The 'penalty rule' remains firmly engaged, as was discussed at the Supreme Court where it was held that such disproportionate charges would always turn on their own facts but would 'rarely' need any more consideration than the age-old comparison to Lord Dunedin's four tests for a penalty. This charge falls foul of that binding case law.

Only a landowner can seek action under the tort of trespass and can only seek a nominal sum. The Court of Appeal (April 2015 in ParkingEye v Beavis) at 50, made it clear trespass was a no-go for ParkingEye: ''However, unless the defendant’s occupation has been of particular value to him, the compensation would be limited to the market value of the occupation during the period of trespass. That would provide no disincentive against overstaying.''

Even if this operator now claims this charge was for 'damages' this does not help them either. A private (non-landowner) operator cannot recover damages. At the Supreme Court it was held at 97: ''ParkingEye concedes that the £85 is payable upon a breach of contract, and that it is not a pre-estimate of damages. As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession in which case it may be able to recover a small amount of damages for trespass. This is because it lost nothing...''

Nor is the charge a core price term; it has never been described as such. This was not a fee or tariff 'price' for agreed parking - it can't be so, in a place the operator suggests is not an authorised parking place.

This charge is disproportionate and charged by a non-landowner, so case law including ParkingEye v Beavis as shown above, renders it a penalty, falling foul of Lord Dunedin's four tests, therefore it was not properly issued and is incapable of recovery. A prohibition on parking offers no contract or licence and cannot be compared to or saved by the Beavis case, which is not a 'silver bullet' superseding all other considerations just because a charge is called a 'parking charge'.

nickham

Wow... these cases are are amazing! So ive now dropped grace period and replaced with your bit.... does that mean it's ready to send?

Coupon-mad

Yes but you will need to renumber them - assuming you deleted point #1 as advised.

Attach it as a PDF under 'other'# on the POPLA website. In your case as you have admitted you were riding/parked the motorbike, you can also tick 'I didn't see the signs' or whatever it gives you, if you want. Show your pictures as attachments too, as well as the PDF appeal, making sure they upload as what looks like little 'packets' when then turn into a tiny icon (it's not very clear but you can hover over it) before you submit it!