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Ticket from CPP in sainsburys car park
goatshed
Posts: 12 Forumite
Hi Folks
I have only just discovered this after making my first appeal that was refused by CPP (Car Parking Partnership) and now I believe I have to appeal to POPLA. I read your newbie notes and it said to start a thread so here it is. I have probably already made a host of 'rookie' mistakes in my initial appeal to CPP printed below.
My 'trangression was parking across a bay line that separated two bays. I had valid ticket for the period which I have kept. Here is my first appeal:
Hi There
I have looked at your 'evidence' and your invoice for £80. I am curious to see how you arrived at this figure for losses given the following:
1. I was not obstructing the main thoroughfare
2. Your own photographic 'evidence' shows that i was in fact only parked across one bay dividing line therefore at most preventing the parking of one other vehicle and and causing no further obstruction. Indeed even this would only be true if the car park was full which it was not either at the point when I parked and or when I returned. If you refute this please send me the evidence of the full car park or place in with the other 'evidence'.
3. I had a valid ticket for the whole period of my parking (which I am still in possession of).
As far as I can see the most I owe you is (if you can prove that the car park was full) the price of the extra bay for two hours which comes to £1:20. I am willing to pay this and by way of good faith will not even ask you to prove that someone needed that space. If you are willing to accept this please reply using the email address above. If you are not then please reply with the amount you want to invoice me for and full details and breakdown of how you arrived at the figure.
In addition
The parking bays in this car park are so narrow that on numerous occasions I have come back to find dents and scratches on the sides of my vehicle. Old people in particular find it difficult to exit a vehicle and not hit the adjoining vehicle with the door. If and when I get this bodywork repaired would you be interested in contributing to the costs as it would appear that you bear at least partial responsibility for the occurrence? Also is there any chance of you widening the bays in the future?
Please note I will be away from home for approximately twelve days from the 2nd Aug 2016 and the area I am visiting will not have computer access or service. If you do not contact me before I leave I will have to deal with this further upon my return.
As suggested by yourselves I have cobbled together a second appeal to go to POPLA but have not sent it yet. It is printed below. I would be grateful for any help anybody can give me.
thanks
Dear sir/ Madam
Please find the details of my appeal below.
On the 28th of July 2016 at 15:25 I was adjudged to have been parked across a bay line in a Sainsbury’s car park and was issued with a ‘Parking Notice’. I was indeed parked across a bay line but was causing no other problem than potentially making either parking tighter at that point or preventing one other car from parking. This would only be true if the car par was full which it was not as far as I saw during any part of my stay.
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, including at court level. A commercial site agent for the true landholder has neither 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 CPP to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between CPP 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 CPP.
In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.
2. No genuine pre-estimate of loss.
The charge is not a genuine pre estimate of loss but an unenforceable penalty as Parking Eye v Beavis can easily be distinguished from this case.
If a contract was formed between the driver and Operator it would be a simple financial consumer contract. An offer of parking for a set sum was made in return for a small payment. This makes plain that the sum being demanded is nothing other than a penalty clause designed to profit from inadvertent errors or minor underpayment, and is consequently unenforceable. As this is a simple financial contract any claim for liquidated damages for breach of contract must represent a genuine pre-estimate of loss. If The Operator believes that inadequate payment was made (which their PCN fails to make clear) their demand should be for any unpaid tariff as that would be their only loss. The charge is clearly extravagant and unconscionable compared to the supposed unpaid tariff. If The Operator believes their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of how this has been calculated.
I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of Parking Eye v Barry Beavis. In that situation the penalty charge was justified on the basis that it was necessary to deter motorists staying longer than allowed to facilitate the turnover of free parking places. It was determined that the contract was not a financial one in that there was no economic transaction between Parking Eye and the motorist. This was not changed by the later judgment in the Supreme Court.
This is in stark contrast to my case where there is an economic transaction between the Operator and the motorist.
This car park is no different to any other commercial enterprise. There can be no argument of commercial justification allowing what would otherwise be a clear penalty simply because a small payment was purportedly not made when the vehicle would otherwise have been welcome to park as it did.
A contractual term which imposes the requirement to pay a disproportionately large sum for failing to pay a far smaller one is the very essence of an unlawful penalty. Analysis of paragraphs 43-51 from the judgment clearly demonstrates that the Court of Appeal would have considered the charge in this case as an unenforceable penalty. This case can be clearly distinguished from that of Parking Eye v Beavis the judgment in which is irrelevant in this situation.
Parking across a bay line can only seen as preventing one other car from parking at the very most and only then if the car park was at capacity which it was not at any time I viewed it. Can the operator prove it was? If so then I would like them to provide the evidence to POPLA and myself. Even if it was the potential lost revenue would only amount to £1:20 and I have already offered CPP this amount to show good will and prevent this matter escalating.
Any reliance on the Supreme Court judgment in the case of Parking Eye v Beavis should also be disregarded as the judgment simply reaffirms that the decision in that case was based on the use of that particular car park which was free and the charge justified to ensure motorists left within 2 hours for the good of all other drivers and the facility and Parking Eye as that was their only income. As previously mentioned in this situation there is no such justification as my car was welcome to park as it did in return for a small payment to the Operator who is already making income from the site.
If Sainsbury’s do turn out to be the landholder and is there a clause in the contract that states that first time transgressors and legitimate customers are not issued with tickets? I would like to check for this.
Another reason this would appear to be an unenforceable penalty is that Sainsbury’s will want their car park from being used by other than their customers and this is the basis of the contract if there is one. I am a regular shopper at this store as it is my local supermarket and therefore do not fall into the category above. I am a loyal customer who has parked across a bay line causing no other possible impediment to the flow and parking of traffic than that already mentioned above. Viewed in this light the request for money can only be seen as purely punative especially as I have already offered CPP the extra money for partially covering two bays.
Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.
Thanks
I have only just discovered this after making my first appeal that was refused by CPP (Car Parking Partnership) and now I believe I have to appeal to POPLA. I read your newbie notes and it said to start a thread so here it is. I have probably already made a host of 'rookie' mistakes in my initial appeal to CPP printed below.
My 'trangression was parking across a bay line that separated two bays. I had valid ticket for the period which I have kept. Here is my first appeal:
Hi There
I have looked at your 'evidence' and your invoice for £80. I am curious to see how you arrived at this figure for losses given the following:
1. I was not obstructing the main thoroughfare
2. Your own photographic 'evidence' shows that i was in fact only parked across one bay dividing line therefore at most preventing the parking of one other vehicle and and causing no further obstruction. Indeed even this would only be true if the car park was full which it was not either at the point when I parked and or when I returned. If you refute this please send me the evidence of the full car park or place in with the other 'evidence'.
3. I had a valid ticket for the whole period of my parking (which I am still in possession of).
As far as I can see the most I owe you is (if you can prove that the car park was full) the price of the extra bay for two hours which comes to £1:20. I am willing to pay this and by way of good faith will not even ask you to prove that someone needed that space. If you are willing to accept this please reply using the email address above. If you are not then please reply with the amount you want to invoice me for and full details and breakdown of how you arrived at the figure.
In addition
The parking bays in this car park are so narrow that on numerous occasions I have come back to find dents and scratches on the sides of my vehicle. Old people in particular find it difficult to exit a vehicle and not hit the adjoining vehicle with the door. If and when I get this bodywork repaired would you be interested in contributing to the costs as it would appear that you bear at least partial responsibility for the occurrence? Also is there any chance of you widening the bays in the future?
Please note I will be away from home for approximately twelve days from the 2nd Aug 2016 and the area I am visiting will not have computer access or service. If you do not contact me before I leave I will have to deal with this further upon my return.
As suggested by yourselves I have cobbled together a second appeal to go to POPLA but have not sent it yet. It is printed below. I would be grateful for any help anybody can give me.
thanks
Dear sir/ Madam
Please find the details of my appeal below.
On the 28th of July 2016 at 15:25 I was adjudged to have been parked across a bay line in a Sainsbury’s car park and was issued with a ‘Parking Notice’. I was indeed parked across a bay line but was causing no other problem than potentially making either parking tighter at that point or preventing one other car from parking. This would only be true if the car par was full which it was not as far as I saw during any part of my stay.
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, including at court level. A commercial site agent for the true landholder has neither 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 CPP to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between CPP 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 CPP.
In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.
2. No genuine pre-estimate of loss.
The charge is not a genuine pre estimate of loss but an unenforceable penalty as Parking Eye v Beavis can easily be distinguished from this case.
If a contract was formed between the driver and Operator it would be a simple financial consumer contract. An offer of parking for a set sum was made in return for a small payment. This makes plain that the sum being demanded is nothing other than a penalty clause designed to profit from inadvertent errors or minor underpayment, and is consequently unenforceable. As this is a simple financial contract any claim for liquidated damages for breach of contract must represent a genuine pre-estimate of loss. If The Operator believes that inadequate payment was made (which their PCN fails to make clear) their demand should be for any unpaid tariff as that would be their only loss. The charge is clearly extravagant and unconscionable compared to the supposed unpaid tariff. If The Operator believes their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of how this has been calculated.
I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of Parking Eye v Barry Beavis. In that situation the penalty charge was justified on the basis that it was necessary to deter motorists staying longer than allowed to facilitate the turnover of free parking places. It was determined that the contract was not a financial one in that there was no economic transaction between Parking Eye and the motorist. This was not changed by the later judgment in the Supreme Court.
This is in stark contrast to my case where there is an economic transaction between the Operator and the motorist.
This car park is no different to any other commercial enterprise. There can be no argument of commercial justification allowing what would otherwise be a clear penalty simply because a small payment was purportedly not made when the vehicle would otherwise have been welcome to park as it did.
A contractual term which imposes the requirement to pay a disproportionately large sum for failing to pay a far smaller one is the very essence of an unlawful penalty. Analysis of paragraphs 43-51 from the judgment clearly demonstrates that the Court of Appeal would have considered the charge in this case as an unenforceable penalty. This case can be clearly distinguished from that of Parking Eye v Beavis the judgment in which is irrelevant in this situation.
Parking across a bay line can only seen as preventing one other car from parking at the very most and only then if the car park was at capacity which it was not at any time I viewed it. Can the operator prove it was? If so then I would like them to provide the evidence to POPLA and myself. Even if it was the potential lost revenue would only amount to £1:20 and I have already offered CPP this amount to show good will and prevent this matter escalating.
Any reliance on the Supreme Court judgment in the case of Parking Eye v Beavis should also be disregarded as the judgment simply reaffirms that the decision in that case was based on the use of that particular car park which was free and the charge justified to ensure motorists left within 2 hours for the good of all other drivers and the facility and Parking Eye as that was their only income. As previously mentioned in this situation there is no such justification as my car was welcome to park as it did in return for a small payment to the Operator who is already making income from the site.
If Sainsbury’s do turn out to be the landholder and is there a clause in the contract that states that first time transgressors and legitimate customers are not issued with tickets? I would like to check for this.
Another reason this would appear to be an unenforceable penalty is that Sainsbury’s will want their car park from being used by other than their customers and this is the basis of the contract if there is one. I am a regular shopper at this store as it is my local supermarket and therefore do not fall into the category above. I am a loyal customer who has parked across a bay line causing no other possible impediment to the flow and parking of traffic than that already mentioned above. Viewed in this light the request for money can only be seen as purely punative especially as I have already offered CPP the extra money for partially covering two bays.
Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.
Thanks
0
Comments
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The first thing you must do now is remove the POPLA code and your name from this thread!!!0
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Ok I've done that.0
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goatshed ... why don't you just complain to Sainsbury's and get this cancelled. If the store manager will not help go the CEO.
You want to know WHY that as a customer you are being scammed, Is this going into the pockets of Sainsbury's or part thereof.
It's amazing what these supermarkets will do protect their thin image0 -
I was going to contact Sainsbury's after reading some of the advice on other threads just now. Thanks for your advice also I'll write a letter.
cheers0
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