Returning closed issue with CPP

Marcyboy88

Understood on both points.

Thank you Umkomaas, I'll submit the template as it stands in the stickie.

Marcyboy88

One quick one guys, is it safe to give the appeal my real name, address, email etc as this is what's required in the online appeal process.

Umkomaas

Marcyboy88 wrote: »

One quick one guys, is it safe to give the appeal my real name, address, email etc as this is what's required in the online appeal process.

Yes you need to do this, otherwise they will ignore your appeal as not meeting the requirements. They will let it go beyond the deadline date then you'll have a real (probably unwinnable) battle to get a POPLA code, where you can kill this off.

But haven't they already got your name and address? How have they otherwise written to you?

Get yourself a throwaway email address to use exclusively for dealing with this PCN, don't use your day-to-day go-to email address.

Marcyboy88

Hi All,

A quick update here.

For the first of my tickets I have now received a POPLA code.
I find it strange that the parking company didn't drop the case as my documentation clearly states my landlord owns the space, but I guess these guys are all rogue and trying it on!

My appeal is on the grounds that they do not own the space and I have a title and letter from my landlord to back this up.

Does anyone have any advice on the wording that should be used?

(Separate note, it failed because the signage was deemed as correct and I believe I should have just input details of them not owning the space)

Marcyboy88

Additionally it is asking if I am appealing on behalf of another. As the registered keeper and not the driver, do I select that yes I am appealing on behalf of another or will I get a change later in the appeal to clarify that the drive was not me?

Coupon-mad

Marcyboy88 wrote: »

Additionally it is asking if I am appealing on behalf of another. As the registered keeper and not the driver, do I select that yes I am appealing on behalf of another or will I get a change later in the appeal to clarify that the drive was not me?

No. You appeal as yourself, the keeper. You are NOT appealing 'for' the driver.

Do not even try to put anything in on POPLA's website yet and don't tick any boxes anyway except 'OTHER' when you are ready and have a full appeal PDF to attach.

My appeal is on the grounds that they do not own the space and I have a title and letter from my landlord to back this up.

That's just ONE appeal point of half a dozen as normally used here.

Does anyone have any advice on the wording that should be used?

Have a look at the recent posts from last weekend in 'POPLA Decisions' and use the templates. Also search for 'POPLA permit space' to read recent similar ones to copy from.

(Separate note, it failed because the signage was deemed as correct and I believe I should have just input details of them not owning the space)

It failed because they ALWAYS reject appeals - the signs are never clear - you could have talked about a radioactive spider (like the Parking Prankster famously did!) in your appeal and it would have been turned down regardless:

http://parking-prankster.blogspot.co.uk/2013/05/highview-parking-spurred-into-immediate.html

Your POPLA appeal needs to include unclear signage - you will find a template in 'POPLA Decisions' which I posted up last weekend.

Marcyboy88

Any input on my planned popla appeal would be great guys!

To whom it may concern:
I am the registered keeper of vehicle xxxxxxx and am appealing a parking charge from CarParkingPartnership (CPP).

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

• No standing or authority to pursue charges nor form contracts with drivers.
• The signage was inadequate - no valid contract formed between CPP and the driver.
• The NTD (notice to driver) is non-compliant with POFA 2012

1. 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, CPP must have assignment of rights from the landowner to pursue charges for breach in their own right.

The parking bay which CPP are trying to enforce is not owned by them. The land is infact owned by a private landlord who has confirmed that there is no agreement in place with the CPP.

The Operator has supplied no evidence to prove that it had authority to pursue charges on this land. The Operator has no proprietary interest in the land and had no standing to make contracts with drivers in their own right, nor to pursue charges for breach in its own name.

In addition, Section 7.3 of the 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 therefore put CPP to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between the operator 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 which have been properly assigned to UKPC.

3. The signage was inadequate - no valid contract formed between CPP and the driver.

The signage in place is completely invalid, as since CPP do not own the land or have any contractual agreement with it's owner, they have no right to enforce this space and are infact tresspassing on the owners property, a fact that the land owner has been made aware of.

The signs that was in place also would fail to meet the requirements due to being away from the light sources in the car park area. The residential car park in which the parking bay is located is generally very dark and while parking at night is illegible.

Section 18 of the British Parking Association (BPA) Code of Practice requires operators to fully comply with the following on entrance signage:

18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.

18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.

At the time of the contravention no signage was clearly visible by the vehicle. Unreadable signage in the car park due to lighting breaches British Parking Association’s (BPA) Code of Practice.
If a driver can't read the sum of the parking charge before parking - because the font is too small/the sign unremarkable and too high to read from a driver's seat - then they cannot have agreed to it. Also, a keeper appellant cannot be bound by inadequate notice of the charge either (POFA Schedule 4 requires 'adequate notice' of the sum of the parking charge, not just vague illegible small print, however near the car).

(COULD I GET INPUT ON A CASE WON BECAUSE OF POOR LIGHTING?)


i.e. even if a document or notice is ostensibly under the nose of a consumer, the onerous term needs to be VERY explicit and prominent. Not hidden among small print on a sign, regardless of whether that sign is in the vicinity of the car. This was reiterated by Denning LJ in Thornton v Shoe Lane Parking [1971] where he held that the courts should not hold any man bound by such a condition unless it was ''drawn to his attention in the most explicit way''. Small print on an illegible, unremarkable and pale sign on a wall is not enough.

No contract can have been formed between the driver and CPP 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 his own dedicated 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.

4. Beavis case not relevant.

As regards the location of the car park, the interests of the operator, there is no comparison with the Beavis decision. The Operator has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable Unfair Contract Term, and this case can easily be distinguished from ParkingEye v Beavis.

The Operator may seek to rely on the case of ParkingEye v Beavis as legitimising the charge in this case. The appellant will make the following observations as to why the material case can be easily distinguished from it. The Supreme Court adjudged that the charge in ParkingEye v Beavis could not be considered a penalty, despite the fact that CPP made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as:

“97 a. The need to provide parking spaces for their commercial tenants prospective customers;-
b. The desirability of that parking being free so as to attract customers;-
c. The need to ensure a reasonable turnover of that parking so as to increase the potential
number of such customers;-
d. The related need to prevent `misuse' of the parking for purposes unconnected with the tenants
business, for example by commuters going to work or shoppers going to o -park premises; and
e. The desirability of running that parking scheme at no cost, or ideally some profit, to them-selves.”

In that case the penalty rule had been engaged by the charge but was then disengaged for the above reasons.
In this case the appellant would submit that the penalty rule has similarly been engaged but in contrast it is not disengaged, the Operator has made no loss and the charge is a penalty. The vehicle was fully entitled to park as it did. The only alleged error is that temporarily on the material date a permit was not displayed (not that there is any obligation to). Had this been done it would have prevented a parking charge notice being issued.

The Operator has no legitimate interest in enforcing this charge, their only interest is to seek to profit from an inadvertent error. Their charge remains an unenforceable penalty as none of the legitimate interests pursued in Parking Eye v Beavis are present in this case. To quote the passage referred to in the Supreme Court judgment.

“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 innocent party in the enforcement of the primary obligation.”

The Supreme Court made clear that their judgment related only to that particular car park and how it operated. In this situation it is impossible, without intellectual dishonesty, to believe that they would determine that this inadvertent error would justify such a disproportionate, extravagant and unconscionable charge when the vehicle was parked in its own allocated bay where it has every entitlement to. Careful analysis of the Supreme Court judgment is not, as the Operator may believe, a judicial green light legitimising all parking charges. It is indeed quite the reverse, and the onus is on the Claimant to demonstrate that they have a legitimate interest in enforcing their charge and that the charge is proportionate to that interest. In this case they do not and it is not.

In this case the imposition of a £100 charge for temporarily forgetting to display an unnecessary permit is quite obviously causing an imbalance of the parties’ rights to the detriment of the appellant contrary to the requirements of good faith. Had the Driver not overlooked displaying the permit then no such charge would have been issued.
It is difficult to imagine a more obvious Unfair Contract Term when all manner of reasons could cause such a momentary oversight. No reasonable person would agree to this charge and the charge is not achieving any objective whatsoever other than punishing an inadvertent error.

The sum of £100 is not communicated to drivers at all, let alone clearly and unambiguously, so it falls foul of the findings of the Supreme Court Judges in ParkingEye v Beavis, where the prominence of the £85 charge depicted on a simple sign in contrasting large lettering, was key. If a driver can't read the sum of the parking 'charge' (the £100 in this case) before parking - because the sign is wordy and unremarkable, the charge not prominent and the words too small to read from a driver's seat - then they cannot have agreed to it.

The Beavis decision is not a silver bullet, not for any operator and not for CPP. That case depended upon clear, prominent and unambiguous signage and a specific and compelling commercial justification, giving rise to a rare exception to the penalty rule IN THAT CASE ONLY. It may be useful to refer to but it cannot be twisted to strike out the majority of private parking ticket appeals.

I would remind POPLA that, at the end of September 2015, the outgoing POPLA Service Manager confirmed this (below) in writing, as the official POPLA policy regarding the requirement for proper application (or not, as the case may be) of the Beavis case by both parties. By definition, it is never the remit of POPLA to 'make the Beavis case' for an operator whose argument is weak or silent as regards any 'legitimate' basis for their charge:

''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.

Yours sincerely
R Reeve
POPLA Administrative Team “

The point here is, the new POPLA Service cannot and must not make any wrong assumptions about keeper liability nor impose the Beavis case arbitrarily upon all cases. There must be no misunderstanding by operators or POPLA that the Beavis case or 'GPEOL' (which I am not arguing, in fact) automatically supersedes all other points of appeal about other parking charges in other car parks.

It certainly does not 'supersede' all other points, is not a silver bullet and each case must still turn on its own facts.

The burden now shifts to this operator (not POPLA) to submit their argument to try to counter mine, that due to the facts of THIS charge in THIS car park with these signs, the Beavis case does not assist them at all.

5. The NTD (notice to driver) is non-compliant with POFA 2012.
As the "period of parking" is not specified, just the "date and time of event". The latter, being a single instant, does not give any information as to whether the driver was given enough time to consider the contract. As keeper I cannot discount that the driver may have driven in, realised it requires permit then driven out after. However dispite the drivers thoughts as the evidence shows, this space is privately owned and confirmation has been issued by the land owner that the space does not require a permit.

This concludes my POPLA appeal
Yours faithfully,

Coupon-mad

Your bullet points at the top don't match the numbering.

(COULD I GET INPUT ON A CASE WON BECAUSE OF POOR LIGHTING?)

I can't think of one off-hand although yes, POPLA cases have been won on 'unlit signs', both at 'old' (London Councils) version of POPLA and the current one.

The land is infact owned by a private landlord who has confirmed that there is no agreement in place with the CPP.

Prove what you say; you'll need to prove the ownership of the bay - not just a right to use it - and prove he said that he has not authorised CPP to infest the bay.

Marcyboy88

Thanks Coupon,

I'm struggling to find cases on poor lighting to quote, could you recommend any sites to check or know of any cases?
I have a title and deed for the parking space sent by my landlord, however getting a letter saying they have not authorized CPP to enforce the bay might be difficult as she lives in Australia, do you think the deeds will be enough.

Amended document below;


Default
Any input on my planned popla appeal would be great guys!

To whom it may concern:
I am the registered keeper of vehicle xxxxxxx and am appealing a parking charge from CarParkingPartnership (CPP).

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

• No standing or authority to pursue charges nor form contracts with drivers.
• The signage was inadequate - no valid contract formed between CPP and the driver.

• Beavis case not relevant

• The NTD (notice to driver) is non-compliant with POFA 2012

1. 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, CPP must have assignment of rights from the landowner to pursue charges for breach in their own right.

The parking bay which CPP are trying to enforce is not owned by them. The land is infact owned by a private landlord who has confirmed that there is no agreement in place with the CPP.

The Operator has supplied no evidence to prove that it had authority to pursue charges on this land. The Operator has no proprietary interest in the land and had no standing to make contracts with drivers in their own right, nor to pursue charges for breach in its own name.

In addition, Section 7.3 of the 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 therefore put CPP to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between the operator 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 which have been properly assigned to UKPC.

2. The signage was inadequate - no valid contract formed between CPP and the driver.

The signage in place is completely invalid, as since CPP do not own the land or have any contractual agreement with it's owner, they have no right to enforce this space and are infact tresspassing on the owners property, a fact that the land owner has been made aware of.

The signs that was in place also would fail to meet the requirements due to being away from the light sources in the car park area. The residential car park in which the parking bay is located is generally very dark and while parking at night is illegible.

Section 18 of the British Parking Association (BPA) Code of Practice requires operators to fully comply with the following on entrance signage:

18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.

18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.

At the time of the contravention no signage was clearly visible by the vehicle. Unreadable signage in the car park due to lighting breaches British Parking Association’s (BPA) Code of Practice.
If a driver can't read the sum of the parking charge before parking - because the font is too small/the sign unremarkable and too high to read from a driver's seat - then they cannot have agreed to it. Also, a keeper appellant cannot be bound by inadequate notice of the charge either (POFA Schedule 4 requires 'adequate notice' of the sum of the parking charge, not just vague illegible small print, however near the car).

(COULD I GET INPUT ON A CASE WON BECAUSE OF POOR LIGHTING?)


i.e. even if a document or notice is ostensibly under the nose of a consumer, the onerous term needs to be VERY explicit and prominent. Not hidden among small print on a sign, regardless of whether that sign is in the vicinity of the car. This was reiterated by Denning LJ in Thornton v Shoe Lane Parking [1971] where he held that the courts should not hold any man bound by such a condition unless it was ''drawn to his attention in the most explicit way''. Small print on an illegible, unremarkable and pale sign on a wall is not enough.

No contract can have been formed between the driver and CPP 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 his own dedicated 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.

3. Beavis case not relevant.

As regards the location of the car park, the interests of the operator, there is no comparison with the Beavis decision. The Operator has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable Unfair Contract Term, and this case can easily be distinguished from ParkingEye v Beavis.

The Operator may seek to rely on the case of ParkingEye v Beavis as legitimising the charge in this case. The appellant will make the following observations as to why the material case can be easily distinguished from it. The Supreme Court adjudged that the charge in ParkingEye v Beavis could not be considered a penalty, despite the fact that CPP made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as:

“97 a. The need to provide parking spaces for their commercial tenants prospective customers;-
b. The desirability of that parking being free so as to attract customers;-
c. The need to ensure a reasonable turnover of that parking so as to increase the potential
number of such customers;-
d. The related need to prevent `misuse' of the parking for purposes unconnected with the tenants
business, for example by commuters going to work or shoppers going to o -park premises; and
e. The desirability of running that parking scheme at no cost, or ideally some profit, to them-selves.”

In that case the penalty rule had been engaged by the charge but was then disengaged for the above reasons.
In this case the appellant would submit that the penalty rule has similarly been engaged but in contrast it is not disengaged, the Operator has made no loss and the charge is a penalty. The vehicle was fully entitled to park as it did. The only alleged error is that temporarily on the material date a permit was not displayed (not that there is any obligation to). Had this been done it would have prevented a parking charge notice being issued.

The Operator has no legitimate interest in enforcing this charge, their only interest is to seek to profit from an inadvertent error. Their charge remains an unenforceable penalty as none of the legitimate interests pursued in Parking Eye v Beavis are present in this case. To quote the passage referred to in the Supreme Court judgment.

“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 innocent party in the enforcement of the primary obligation.”

The Supreme Court made clear that their judgment related only to that particular car park and how it operated. In this situation it is impossible, without intellectual dishonesty, to believe that they would determine that this inadvertent error would justify such a disproportionate, extravagant and unconscionable charge when the vehicle was parked in its own allocated bay where it has every entitlement to. Careful analysis of the Supreme Court judgment is not, as the Operator may believe, a judicial green light legitimising all parking charges. It is indeed quite the reverse, and the onus is on the Claimant to demonstrate that they have a legitimate interest in enforcing their charge and that the charge is proportionate to that interest. In this case they do not and it is not.

In this case the imposition of a £100 charge for temporarily forgetting to display an unnecessary permit is quite obviously causing an imbalance of the parties’ rights to the detriment of the appellant contrary to the requirements of good faith. Had the Driver not overlooked displaying the permit then no such charge would have been issued.
It is difficult to imagine a more obvious Unfair Contract Term when all manner of reasons could cause such a momentary oversight. No reasonable person would agree to this charge and the charge is not achieving any objective whatsoever other than punishing an inadvertent error.

The sum of £100 is not communicated to drivers at all, let alone clearly and unambiguously, so it falls foul of the findings of the Supreme Court Judges in ParkingEye v Beavis, where the prominence of the £85 charge depicted on a simple sign in contrasting large lettering, was key. If a driver can't read the sum of the parking 'charge' (the £100 in this case) before parking - because the sign is wordy and unremarkable, the charge not prominent and the words too small to read from a driver's seat - then they cannot have agreed to it.

The Beavis decision is not a silver bullet, not for any operator and not for CPP. That case depended upon clear, prominent and unambiguous signage and a specific and compelling commercial justification, giving rise to a rare exception to the penalty rule IN THAT CASE ONLY. It may be useful to refer to but it cannot be twisted to strike out the majority of private parking ticket appeals.

I would remind POPLA that, at the end of September 2015, the outgoing POPLA Service Manager confirmed this (below) in writing, as the official POPLA policy regarding the requirement for proper application (or not, as the case may be) of the Beavis case by both parties. By definition, it is never the remit of POPLA to 'make the Beavis case' for an operator whose argument is weak or silent as regards any 'legitimate' basis for their charge:

''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.

Yours sincerely
R Reeve
POPLA Administrative Team “

The point here is, the new POPLA Service cannot and must not make any wrong assumptions about keeper liability nor impose the Beavis case arbitrarily upon all cases. There must be no misunderstanding by operators or POPLA that the Beavis case or 'GPEOL' (which I am not arguing, in fact) automatically supersedes all other points of appeal about other parking charges in other car parks.

It certainly does not 'supersede' all other points, is not a silver bullet and each case must still turn on its own facts.

The burden now shifts to this operator (not POPLA) to submit their argument to try to counter mine, that due to the facts of THIS charge in THIS car park with these signs, the Beavis case does not assist them at all.

4. The NTD (notice to driver) is non-compliant with POFA 2012.
As the "period of parking" is not specified, just the "date and time of event". The latter, being a single instant, does not give any information as to whether the driver was given enough time to consider the contract. As keeper I cannot discount that the driver may have driven in, realised it requires permit then driven out after. However despite the drivers thoughts as the evidence shows, this space is privately owned and confirmation has been issued by the land owner that the space does not require a permit.

This concludes my POPLA appeal
Yours faithfully,

Coupon-mad

Surely your main points should be 'no keeper liability' and 'no evidence that the appellant keeper is the individual liable (driver) because there was no NTK served at all (or did they send one)? If they did then POFA flaws with that are important whereas the NTD is relatively less important. If they did NOT serve a NTK then you can adapt the example wording here about 'no NTK served':

https://forums.moneysavingexpert.com/discussion/comment/71316870#Comment_71316870

Have a look at the template POPLA appeal points recently added to the POPLA Decisions thread. You can use two or three and one is a detailed 'unclear signage' version which you could adapt to bang on about there also being no lighting.