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POPLA appeal - Not parked wholly within bay
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Ashu140
Posts: 1 Newbie
hi Team.
i would like to review my draft for appeal against my not being able to park my car within bay.
i received the PCN - Parking charge notice on my windscreen. and back of my car was over the faded white line and about 2 inches outside of it. and front tyre was on the white line.
i have one questions.
Q. when i raised my appeal with PEA ( Parking & Enforcement Agency - a private car park company under BPA) i mentioned that i was the driver, atleast my story was told that way. as i hadn't read about any reviews and guidance. So should i now change my appeal to show that i am the keeper, although i haven't seen the NTK and already raised the appeal with PEA on the basis of the PCN on my windscreen ?
my main basis for appeal are that one of my rear tyre was on the white faded parking line and about 2 inches outside the white line. and my front tyre was on the side white line.
so mainly unfar charge and no gunuine economic loss.
but reading the forum i have added some more grounds which i guess are applicable to most request.
Below is my draft appeal for POPLA.
1. The Charge is not a genuine pre-estimate of loss:
I do not believe that an unenforceable £100 invoice demonstrates an estimate of likely losses. This car park is Pay and Display and as far as I can ascertain as keeper, a payment was made. The alleged parking charge must be an estimate of likely losses flowing the so called offence as believed by the operator.
Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, costs in relation to processing of appeals when only a very small percentage of motorists actually appeal as far as POPLA 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.
It is not sufficient to simply list the names of previous cases without applying them to this case.
The Respondent claims that its charges are in line with the BPA Ltd Code of Practice. Whilst the BPA Ltd CoP states that operator must justify in advance any parking charge over £100, it does not automatically follow that that any charge which is £100 or under is justified.
The Respondent also claims that its charges have been held to be enforceable in other cases but has failed to produce any reasonable evidence to justify this particular parking charge. Losses caused by breaches of a parking contract may vary depending on the nature of the breach and the car park. The fact that a parking charge at a certain level is held not to be a penalty in one car park does not mean that the same sum is a pre-estimate of loss caused in every car park.
It is my assertion that the £100 parking charge is punitive and an unenforceable penalty and the Respondent has not provided any evidence as to how and why this parking charge is a genuine pre-estimate of loss. It is not sufficient to simply list the names of previous cases without applying them to this case.
Parking Eye vs Beavis case
I would also point out that the Parking Eye vs Beavis case has been given leave to appeal to the Supreme Court. Therefore I would request that appeal be postponed until it is known if the appeal will be going ahead. Should this happen I request that all references to the case be disregarded as potentially unsound.
Furthermore, the car park in the Parking Eye vs Beavis case concerns a “Free for a limited time” model whereas this case is a Pay & Display car park therefore the argument is invalid. The charge was deemed necessary as a deterrent to prevent motorists abusing the free parking facility, and clogging up the car park, preventing other customers from using the spaces. In a car park for which parking is paid for at an hourly rate, no such deterrent is necessary.
2. Lack of Proprietary Interest & non-compliant Contract with Landowner
I put Parking & Enforcement Agency ltd to strict proof that they have a relevant, contemporaneous contract with the landowner that entitles them to pursue these charges in the courts in their own name as creditor.
Further, I require Parking & Enforcement Agency ltd to produce a full contemporaneous, unredacted copy of their agreement with the landowner to confirm (or otherwise) that they had the necessary legal standing to offer parking and pursue charges in their own name at the time of the alleged parking event.
A Witness Statement will not be sufficient.
The BPA Code of Practice (CoP) contains the following:
a.Written authorisation of the landowner
b. If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.
3. Non-Compliant Signage, Unclear and Inadequate.
The alleged parking event took place at night.
Due to the position of signage, the lack of signage frequency and the barely legible size of the small print, the signs and any core parking terms Parking & Enforcement Agency ltd are relying upon are too small for a driver to read and illegible at night.
The appellant paid for parking, complied with such terms as could be discerned in the conditions.
It is the will of Parliament following the EU Consumer Rights Directive that express consent is obtained for consumer contracts (not implied consent) and that information is provided in a durable medium in advance.
Based on the signage in this car park, Parking & Enforcement Agency ltd has failed to meet these requirements.
I request that POPLA check PEA’s evidence and signage positions/photos on this point and compare the signs to the BPA Code of Practice requirements.
I contend that the signs on this land (wording, position, frequency, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]).
There is no contract between Parking & Enforcement Agency ltd and the driver, but even if there was a contract then it would be unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. The requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc., were not satisfied.
4. Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
’18.1.3 Objections are less likely…if a term is specific and transparent as to what must be paid and in what circumstances.
An unlit sign of terms placed to high to read, is far from ‘transparent’.
The point that the car was parked with one tyre outside by couple of inches and other tyre on the line would not have obstructed anyone else to use the next space and also the car park was hardly 20% full in the night around ten pm.
Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) “Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.” Furthermore, Regulation 5(1) states that: “A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer”.
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: “A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.
The Appeal
The parking charge of £100 is punitive. It does not represent a genuine pre-estimate of liquidated damages and is therefore an unlawful penalty charge
The Respondent does not have the necessary contractual authority from the landowner to pursue this parking charge.
I respectfully request that this appeal be allowed and charge be dismissed.
In the event that POPLA is minded not to grant the appeal then, because the Respondent failed to provide any evidence of its entitlement to recover parking charges until this stage, it is requested that it be ordered that the Respondent be not allowed to recover any more than the charge of not being able to use the next parking bay and charge for that for half an hour but I would be happy to pay for an hour.
Regards,
XXXX
i would like to review my draft for appeal against my not being able to park my car within bay.
i received the PCN - Parking charge notice on my windscreen. and back of my car was over the faded white line and about 2 inches outside of it. and front tyre was on the white line.
i have one questions.
Q. when i raised my appeal with PEA ( Parking & Enforcement Agency - a private car park company under BPA) i mentioned that i was the driver, atleast my story was told that way. as i hadn't read about any reviews and guidance. So should i now change my appeal to show that i am the keeper, although i haven't seen the NTK and already raised the appeal with PEA on the basis of the PCN on my windscreen ?
my main basis for appeal are that one of my rear tyre was on the white faded parking line and about 2 inches outside the white line. and my front tyre was on the side white line.
so mainly unfar charge and no gunuine economic loss.
but reading the forum i have added some more grounds which i guess are applicable to most request.
Below is my draft appeal for POPLA.
1. The Charge is not a genuine pre-estimate of loss:
I do not believe that an unenforceable £100 invoice demonstrates an estimate of likely losses. This car park is Pay and Display and as far as I can ascertain as keeper, a payment was made. The alleged parking charge must be an estimate of likely losses flowing the so called offence as believed by the operator.
Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, costs in relation to processing of appeals when only a very small percentage of motorists actually appeal as far as POPLA 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.
It is not sufficient to simply list the names of previous cases without applying them to this case.
The Respondent claims that its charges are in line with the BPA Ltd Code of Practice. Whilst the BPA Ltd CoP states that operator must justify in advance any parking charge over £100, it does not automatically follow that that any charge which is £100 or under is justified.
The Respondent also claims that its charges have been held to be enforceable in other cases but has failed to produce any reasonable evidence to justify this particular parking charge. Losses caused by breaches of a parking contract may vary depending on the nature of the breach and the car park. The fact that a parking charge at a certain level is held not to be a penalty in one car park does not mean that the same sum is a pre-estimate of loss caused in every car park.
It is my assertion that the £100 parking charge is punitive and an unenforceable penalty and the Respondent has not provided any evidence as to how and why this parking charge is a genuine pre-estimate of loss. It is not sufficient to simply list the names of previous cases without applying them to this case.
Parking Eye vs Beavis case
I would also point out that the Parking Eye vs Beavis case has been given leave to appeal to the Supreme Court. Therefore I would request that appeal be postponed until it is known if the appeal will be going ahead. Should this happen I request that all references to the case be disregarded as potentially unsound.
Furthermore, the car park in the Parking Eye vs Beavis case concerns a “Free for a limited time” model whereas this case is a Pay & Display car park therefore the argument is invalid. The charge was deemed necessary as a deterrent to prevent motorists abusing the free parking facility, and clogging up the car park, preventing other customers from using the spaces. In a car park for which parking is paid for at an hourly rate, no such deterrent is necessary.
2. Lack of Proprietary Interest & non-compliant Contract with Landowner
I put Parking & Enforcement Agency ltd to strict proof that they have a relevant, contemporaneous contract with the landowner that entitles them to pursue these charges in the courts in their own name as creditor.
Further, I require Parking & Enforcement Agency ltd to produce a full contemporaneous, unredacted copy of their agreement with the landowner to confirm (or otherwise) that they had the necessary legal standing to offer parking and pursue charges in their own name at the time of the alleged parking event.
A Witness Statement will not be sufficient.
The BPA Code of Practice (CoP) contains the following:
a.Written authorisation of the landowner
b. If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.
3. Non-Compliant Signage, Unclear and Inadequate.
The alleged parking event took place at night.
Due to the position of signage, the lack of signage frequency and the barely legible size of the small print, the signs and any core parking terms Parking & Enforcement Agency ltd are relying upon are too small for a driver to read and illegible at night.
The appellant paid for parking, complied with such terms as could be discerned in the conditions.
It is the will of Parliament following the EU Consumer Rights Directive that express consent is obtained for consumer contracts (not implied consent) and that information is provided in a durable medium in advance.
Based on the signage in this car park, Parking & Enforcement Agency ltd has failed to meet these requirements.
I request that POPLA check PEA’s evidence and signage positions/photos on this point and compare the signs to the BPA Code of Practice requirements.
I contend that the signs on this land (wording, position, frequency, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]).
There is no contract between Parking & Enforcement Agency ltd and the driver, but even if there was a contract then it would be unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. The requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc., were not satisfied.
4. Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
’18.1.3 Objections are less likely…if a term is specific and transparent as to what must be paid and in what circumstances.
An unlit sign of terms placed to high to read, is far from ‘transparent’.
The point that the car was parked with one tyre outside by couple of inches and other tyre on the line would not have obstructed anyone else to use the next space and also the car park was hardly 20% full in the night around ten pm.
Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) “Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.” Furthermore, Regulation 5(1) states that: “A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer”.
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: “A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.
The Appeal
The parking charge of £100 is punitive. It does not represent a genuine pre-estimate of liquidated damages and is therefore an unlawful penalty charge
The Respondent does not have the necessary contractual authority from the landowner to pursue this parking charge.
I respectfully request that this appeal be allowed and charge be dismissed.
In the event that POPLA is minded not to grant the appeal then, because the Respondent failed to provide any evidence of its entitlement to recover parking charges until this stage, it is requested that it be ordered that the Respondent be not allowed to recover any more than the charge of not being able to use the next parking bay and charge for that for half an hour but I would be happy to pay for an hour.
Regards,
XXXX
0
Comments
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Q. when i raised my appeal with PEA ( Parking & Enforcement Agency - a private car park company under BPA) i mentioned that xx was the driver, atleast my story was told that way. as i hadn't read about any reviews and guidance. So should i now change my appeal to show that i am the keeper, although i haven't seen the NTK and already raised the appeal with PEA on the basis of the PCN on my windscreen ?
If you are SURE you gave the game away then you should continue to appeal as driver. e.g. if you appealed online and chose 'driver' on any drop-down menu then you are the driver in the appeal. If you wrote 'I parked' then you shot yourself in the foot and you must now appeal only as driver and cannot use anything about keeper liability at all.
But if you just thought you 'might' have suggested it with a vague quick appeal and are not sure, keep in 'no keeper liability'.
That said, now throw that outdated POPLA appeal in the bin and start again. Honestly, you have read OLD ones and cannot argue 'no loss' in 2016. You would lose at POPLA with that. And the section 'Unreasonable/Unfair terms' means nothing at all and is referring to old Regs (the UTCCRs were superseded in 2015!).
Easier than it sounds because we now have a number of POPLA appeal points covering the essential areas for appeal. They are in 'near template' state, but will need to be checked first against the circumstances of your parking event.
These are long on detail and when put together form a formidable block of text, deliberately so to scare off some PPCs who cannot be bothered to contest (fairly common).
PEA are unlikely to be able to put in the time to work methodically through a very long appeal and decide to save themselves the hassle (and the POPLA fee) by throwing in their cards on receipt of the appeal.
Signage (I deliberately go to town in this section, don't cut it down!):
http://forums.moneysavingexpert.com/showpost.php?p=71285691&postcount=2341
Driver Liability - The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
http://forums.moneysavingexpert.com/showpost.php?p=71287626&postcount=2342
Landowner Authority
No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
http://forums.moneysavingexpert.com/showpost.php?p=71287628&postcount=2343
No Keeper Liability (windscreen ticket, no follow on NtK)
Example for cases where the PPC issued only a windscreen PCN but did not follow it with a NTK:
http://forums.moneysavingexpert.com/showpost.php?p=71287643&postcount=2345
You can copy them verbatim and put them together.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Today I was issued a notice in a large retail park for £100 for parking across 2 bays in a large nearly empty car park outside - Pizza Hut - I had a meal in there with my son
Can I appeal it as being unreasonable / there was a sign as I checked after receiving the ticket
ThNks0 -
hav,nt got a clue ,why not lok at that big stickie post thing saying "newbies read this first"
one of the suggestions in it is not to hijack other posts that are completly different to your ownSave a Rachael
buy a share in crapita0 -
We want to help but you are on someone else's thread.Today I was issued a notice in a large retail park for £100 for parking across 2 bays in a large nearly empty car park outside - Pizza Hut - I had a meal in there with my son
Can I appeal it as being unreasonable / there was a sign as I checked after receiving the ticket
See my signature (below) for exactly where to click to read 'NEWBIES READ THESE FAQS FIRST'. And where you can start a new thread.
PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0
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