Review of my popla appeal please

jswinden

Hi all,

I have been issued a PCN whilst parking in my car parking space within my flat (the permit fell off the window onto the floor out of sight). I own the flat and parking space which is detailed within my lease which makes no mention of parking permits or charges.

I have had an initial rejection from P4 parking and now plan to launch a POPLA appeal (having now read all the advice!). Would appreciate thoughts and edits to my proposed letter:

Dear Sir/Madam,
Re: Parking Charge Reference number X Vehicle registration: X

I am the registered keeper of the above vehicle and have received the above demand from P4 Parking.
My appeal to P4 Parking was rejected and they gave me POPLA code X.
The basis of my appeal is:

1) Lack of authority from landowner
I legally occupy the space in question (bay X) as detailed in my property deeds. I have not given permission for P4 parking to operate on the land that I legally occupy. I require P4 parking to provide a full unredacted copy of any agreements that provide evidence that they have lawful authority to operate on my land with my permission. I am the legal occupier and have the right to peacefully enjoy my space.

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.

2) The Charge is not a genuine pre-estimate of loss
P4 Parking must prove the charge to be a genuine pre-estimate of loss.

The British Parking Association Code of Practice uses the word ‘MUST’:
“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.”

P4 parking cannot demonstrate any initial quantifiable loss. As the car parking is free, there can be no loss to P4 parking and therefore no loss flowing from the parking event.

As the legal occupier of the space, I can confirm I suffered no loss and my vehicle was parking in my bay.

3. Inadequate signage, forming no contract with drivers

The Parking Notice on display in the car park is out of date. One of the reasons listed on the Parking Notice for being issued with a “parking charge notice” is being “Parked without displaying a valid road tax”. Displaying a valid tax disc has not been necessary since 1st October 2014. If this is still one of the valid reasons P4 Parking has for ticketing cars then all cars within the development need to be issued with PCN’s as they do not meet the terms of this Parking Notice.
Please see the picture attached of the sign in the car park in which states “Parked without displaying valid road tax issued by the DVLA”

Conclusion
I contend it is wholly unreasonable to charge a disproportionate sum where no loss has been caused and P4 parking have no authority to issue such a charge.
I therefore respectfully request that my appeal is upheld and the charge is dismissed.
Yours sincerely,


Thanks!

Umkomaas

2) The Charge is not a genuine pre-estimate of loss

Nope, nope, nope. Dead and buried following ParkingEye -v- Beavis.

The British Parking Association Code of Practice uses the word ‘MUST’:
“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer

Hasn't for the past couple of years.

You've obviously used some old POPLA appeal stuff here. Please go to the NEWBIES FAQ sticky and read post #3 there. It has been updated only a few days ago with brand new POPLA appeal points for you to copy and paste. Please use them.

Also, read this and quote the case in your POPLA appeal - the court case reference number is detailed in it.

http://parking-prankster.blogspot.co.uk/2016/11/link-parking-lose-in-wrexham-flat-owner_2.html

HTH

Coupon-mad

I agree with Umkomaas, that is far too short and GPEOL is in the bin.

Use the templates linked in post #3 of the NEWBIES thread as your first step. Copy them.



Also if you never said who was driving in your first appeal (we hope you didn't) then you've missed the obvious points #1 and #2 for any POPLA appeal where no NTK was ever served. Both are linked in post #3 of the NEWBIES thread, one about 'no NTK served/no keeper liability' and the second one that goes hand in hand with that, about the appellant not having been shown to be the individual liable.


Definitely cite the case linked by Umkomaas in your POPLA appeal as well, in an extra appeal point like this:


No legitimate interest - the charge is incompatible with my rights as leasehold owner of the parking bay - this distinguishes this case from the Beavis case:

In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other 'legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question'. The true test was held to be 'whether the impugned provision is a secondary obligation which imposes a detriment [...] out of all proportion to any legitimate interest [...] in the enforcement of the primary obligation'.

There can be no 'legitimate interest' in penalising residents for parking on their own property (I am the owner), under the excuse of a scheme where ostensibly, the parking firm is contracted by a remote (non-landowner) managing agent for the benefit of residents with a remit of deterring non-residents and preventing parking on common areas where parking is not intended.

It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' to fine residents and my ownership/lease supersedes any signage, which has no merit and creates no valid contract with homeowners.

I own the flat and parking space which is detailed within my lease which makes no mention of parking permits or charges. I am uploading a copy of my title deeds as evidence and can confirm that as the legal landowner I do not consent to a parking firm issuing 'tickets' on my land, have no reason to have to display a permit when authorised drivers are using my owned bay. Further, P4Parking were not only out of their authorised area (the common areas) but by encroaching into my bay they were trespassing and I have every right to prevent this nuisance.

As authority for this view I adduce this case: Z8829941: R. Davey v UKPC, Winchester Crown Court 21.1.2013; Mr Davey's own account is here:

http://www.consumeractiongroup.co.uk/forum/showthread.php?377246-UKPC-liable-for-trespass-**SUCCESS**

Mr Davey's case was exactly the same as in this case under POPLA consideration, as Mr Davey reported:

''...they have persisted on putting tickets on our cars on our own land i.e. not an allocated bay but registered to us at Land Registry... We objected and demanded undertakings not to trespass on our land and not to place tickets on our cars stating clearly it was our land with registered title. They persist and have refused to give undertakings and again on the 29th December entered our land and put a notice on our car demanding £100.00. They are very keen on throwing unlawful penalties around for alleged trespass and as it they who are trespassing on our land we issued county court proceedings against them claiming damages for trespass and an injunction to prevent further trespass, and costs.
1. Judgment for the Claimants (Mr Davey, the owner of the parking space)
2. Damages for trespass in a total of £150.00
3. UKPC paid costs in the sum of £ 1280.26''

This question was tested again recently in an Appeal at Oxford County Court, JOPSON V HOME GUARD SERVICES, case number: 9GF0A9E on 29.6.16, transcript below:

https://www.dropbox.com/s/lreofcbz6hjb0jl/JOPSON%20V%20HOMEGUARD%202906J%20Approved.pdf?dl=0

A further case was also heard on the same day involving another resident, parking in their designated space with a temporary loan car which had no permit displayed. This was also successfully appealed. Summary of the above transcript:

Judge Charles Harris QC, found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats who parked in front of the communal entrance to unload furniture, rather than use her own parking space. Home Guard Services sued Miss Jopson in the small claims court and won. Miss Jopson instructed a firm of solicitors in Aylesbury who successfully appealed the case, arguing that the charge was incompatible with the terms of the lease which gives residents easements and specific rights which supersede any parking firm signs.

The Judge found that Home Guard Services’ regulations disregarded these rights. Home Guard Services were required to pay £2,000 towards the defendant's costs. As this is an Appeal Case, it is persuasive on the lower courts and is more recent than Beavis. The Judge was also at pains to point out that such a case can be fully distinguished from Beavis, which did not apply.

I also ask POPLA to read the transcript of the Croydon Court decision just weeks ago, in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016, where District Judge Coonan dismissed the claim and refused leave to appeal, stating:

''I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.''

POPLA please note I have more rights than a tenant - I am the owner and do not consent to P4Parking entering my land. Title deeds/lease extract attached as evidence as well as the transcript in PACE v Mr N:

http://nebula.wsimg.com/c269da31b314e7cc17e383a625b5ae23?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

jswinden

Thanks a lot guys - appreciate it. I have had another go mentioning all of the points you advised- can you take a look please?

Also - in terms of mentioning the driver I don't believe I did (the appeal was online via their website so I can't retrieve a copy!) - I think I said 'my car'. In fact - it was my husband driving anyway not me! So as I don't THINK I did - shall I go ahead and include the point anyway?

Couple more quick things to check:
- the car actually belongs to my mum but she has given it to my husband (though we didnt change the registered keeper details so it doesnt have a long owner history). I don't want to involve her and give her hassle so I am taking this up - presume I am ok to say I am the keeper? I have another car but my husband is named insured one on this car.
- only other attachment I need to provide is a copy of my lease right? Its a huge booklet so I guess I just attach scans of the relevant pages?
- Anything else I should attach?
- Does the order of the points I submit matter?


LETTER DRAFT:

Dear Sir/Madam,
Re: Parking Charge Reference number X Vehicle registration: X
I am the registered keeper of the above vehicle and have received the above demand from P4 Parking.
My appeal to P4 Parking was rejected and they gave me POPLA code X.
The basis of my appeal is:
1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

4. The signs in this car park are not prominent, clear or legible from all parking spaces; are inadequate and out of date; and there is insufficient notice of the sum of the parking charge itself

5. No legitimate interest - the charge is incompatible with my rights as leasehold owner of the parking bay


1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

2. 2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. I legally occupy the space in question (bay 128) as detailed in my property deeds.

ATTACH COPY OF DEED (relevant pages)

I have not given permission for P4 parking to operate on the land that I legally occupy. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply.

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 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

4. The signs in this car park are not prominent, clear or legible from all parking spaces; are inadequate and out of date; and there is insufficient notice of the sum of the parking charge itself

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

LINK

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

LINK

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print. Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

LINK

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

LINK

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:

LINK

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or buried in far too crowded small print, is woefully inadequate in a car park. Given that letters look smaller when high up on a wall, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it (with perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

LINK

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

In addition to the signage being not clear and prominent, they were also out of date. One of the reasons listed on the Parking Notice for being issued with a “parking charge notice” is being “Parked without displaying valid road tax issued by the DVLA”. Displaying a valid tax disc has not been necessary since 1st October 2014. If this is still one of the valid reasons P4 Parking has for ticketing cars then all cars within the development need to be issued with PCN’s as they do not meet the terms of this Parking Notice.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

4. No legitimate interest - the charge is incompatible with my rights as leasehold owner of the parking bay - this distinguishes this case from the Beavis case:
In Beavis it was held that the purpose of a parking charge must not be to penalise drivers. Justification must depend on some other 'legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question'. The true test was held to be 'whether the impugned provision is a secondary obligation which imposes a detriment [...] out of all proportion to any legitimate interest [...] in the enforcement of the primary obligation'.

There can be no 'legitimate interest' in penalising residents for parking on their own property (I am the owner), under the excuse of a scheme where ostensibly, the parking firm is contracted by a remote (non-landowner) managing agent for the benefit of residents with a remit of deterring non-residents and preventing parking on common areas where parking is not intended.

It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' to fine residents and my ownership/lease supersedes any signage, which has no merit and creates no valid contract with homeowners.

I own the flat and parking space which is detailed within my lease which makes no mention of parking permits or charges. I am uploading a copy of my title deeds as evidence and can confirm that as the legal landowner I do not consent to a parking firm issuing 'tickets' on my land, have no reason to have to display a permit when authorised drivers are using my owned bay. Further, P4Parking were not only out of their authorised area (the common areas) but by encroaching into my bay they were trespassing and I have every right to prevent this nuisance.

As authority for this view I adduce this case: Z8829941: R. Davey v UKPC, Winchester Crown Court 21.1.2013; Mr Davey's own account is here:

LINK

Mr Davey's case was exactly the same as in this case under POPLA consideration, as Mr Davey reported:

''...they have persisted on putting tickets on our cars on our own land i.e. not an allocated bay but registered to us at Land Registry... We objected and demanded undertakings not to trespass on our land and not to place tickets on our cars stating clearly it was our land with registered title. They persist and have refused to give undertakings and again on the 29th December entered our land and put a notice on our car demanding £100.00. They are very keen on throwing unlawful penalties around for alleged trespass and as it they who are trespassing on our land we issued county court proceedings against them claiming damages for trespass and an injunction to prevent further trespass, and costs.
1. Judgment for the Claimants (Mr Davey, the owner of the parking space)
2. Damages for trespass in a total of £150.00
3. UKPC paid costs in the sum of £ 1280.26''

This question was tested again recently in an Appeal case in June 2016 as recorded in the press and in the Solicitors Journal (8.7.16):

LINK

Sitting in Oxford County Court, Judge Charles Harris QC, found that Home Guard Services had acted unreasonably when issuing a penalty charge notice to Miss Jopson, a resident of a block of flats who parked in front of the communal entrance to unload furniture, rather than use her own parking space. Home Guard Services sued Miss Jopson in the small claims court and won. Miss Jopson instructed a firm of solicitors in Aylesbury who successfully appealed the case, arguing that the charge was incompatible with the terms of the lease. The Judge found that residents (as well as people making deliveries or those dropping off children or disabled passengers) enjoy a right of way to the block’s entrance and that Home Guard Services’ regulations disregarded these rights.

Home Guard Services were required to pay £2,000 towards the defendant's costs.

I also ask POPLA to read the transcript of the Croydon Court decision just weeks ago, in Pace Recovery and Storage v Mr N C6GF14F0 16/09/2016, where District Judge Coonan dismissed the claim and refused leave to appeal, stating:

''I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.''

POPLA please note I have more rights than a tenant - I am the owner and do not consent to P4Parking entering my land. Title deeds/lease extract attached as evidence as well as the transcript in PACE v Mr N:

LINK

I therefore respectfully request that my appeal is upheld and the charge is dismissed.
Yours sincerely,
XXXX

Umkomaas

On a scan-read it looks hugely better.

I notice you're intending to put in lots of links. Where possible take screen shots and embed them as pictures within the document (which you will need to convert to a .pdf file for attaching, as the appeal box on the POPLA website has a word limit which this size of appeal won't fit into).

Expecting the Assessor to visit websites to access information that could be built in as pictures won't necessarily get them on your side. Remember you want the Assessor to be your 'friend', not that of the PPC!

Pictures will help break up and make more readable the 'wall of text' the appeal will look like otherwise.

Embolden each of your numbered appeal headings which will help the Assessor see you've got all bases covered and allow them to quickly move to one they can quickly uphold your case for you. You only need for them to find in your favour on one appeal point to win. For the PPC to win, they have to dispute conclusively and successfully each of your appeal points.

When submitting your appeal check the 'Other' box to indicate reason for appeal. Put something like 'Please see my appeal attached as a .pdf file for assessment' in the actual appeal dialogue box.

Unless you're tight up against the POPLA deadline, leave this up for a couple of days to see if there are any other comments.

Do let us know how you get on.

jswinden

Hi Everyone,

So P4 Parking have submitted their response to POPLA for the appeal and I have 7 days to add comments. Below is the response they have submitted. Can you please advise on if and where I should leave comment? My only initial thought it that my lease copy says it is made between 'X trading limited' (landowner) / 'X Residents Management Company Ltd' / and myself. As the appeal response below states, their contract is with the management company - do they therefore have a contract with myself?

They also reference a residents information pack (which they have provided) which describes the permits and fines. They show it is dated October 2015 but my lease is dated 2010. How can they therefore confirm I have received this and how have I accepted?

Anything else you can think of? Thanks Everyone

Dear Sirs,
Regarding below appeal, Notification of POPLA Appeal - X, please find enclosed next
documents:
1. Photographic evidences
2. Appeal denied letter from P4Parking
3. Original message from Appellant

The ticket had been issued correctly because there was No Parking Permit on Visible Display.
1. We note the appellant has stated a notice to keeper was not issued correctly in line with POFA 2012. From the evidence you can see a notice to driver was issued on 24 October 2016 at 19:04 and an appeal was received from the registered keeper the following day, on 25 October 2016 at 08:58 (please see APPEAL X.pdf). As she (the keeper) appealled the notice to driver within 28 days, there was no requirement for the operator to issue a notice to keeper.
It is the keeper’s responsibility to make sure who was the driver of the vehicle at the time of the parking charge notice being issued. According to Schedule 4 of POFA 2012 we are able to pursue the keeper of the vehicle for the unpaid parking charge if she refuses to disclose the drivers’ details.
Mrs. X stated that she is the registered keeper of the vehicle, address: X, therefore, she is liable to pay the parking charge notice as she failed to provide us with the drivers’ details.

2. As a resident she should be aware of the parking conditions and regulation and always
park displaying a valid parking permit.
If unclear there are signs within the development with the company contact details to
enquire about parking conditions she failed to do so and chose to ignore these notices and
parked the vehicle at her own risk.
It is the responsibility of the person parking to demonstrate the adherence to the rules
governing the parking of the vehicle(s) within the grounds. If in doubt, P4Parking operates
5 days a week Monday to Friday from 9:00am till 5:00pm a manned control-room whose
staffs are willing and able to advice on the validity of the parking prior to any charge being
issued. This contact number is available on any P4Parking warning notice and is placed
throughout the private grounds.
Please find attached pictorial evidence of the location, the signage, which is clearly
displayed at the entrance to and throughout the car park, states that this is private land,
the car park is managed by P4Parking, and parking tariffs apply or a Parking Charge will be
incurred, along with other terms and conditions of the car park by which those who park in
the car park agree to be bound. As you can see, P4Parking does ensure that the signage is
of adequate size, visible at a distance and viewable. Please see pictorial evidence
“ENTRANCE ON THE LOCATION PARKING SIGNS 1 – 10.jpeg”, “NEW SOUTH QUARTER
CONCIERGE.jpeg”, “Underground Car Park 1 – 19.jpeg”
P4Parking ensure that signs are visible and in place and can be seen by motorists. At the
time the vehicle was ticketed our operative took photographs of the vehicle and offence
and also one showing the nearest sign in relation to the vehicle ticketed. After having
inspected the photographs, we are confident that the signage was adequately visible to the
parking motorist.
It was clearly stated on the parking terms & conditions signs “This land is private property.
By parking here you are entering into a binding contractual agreement. All vehicles
parked within these private grounds, and not displaying an authorised parking permit or
parked outside of this development’s parking regulations, will be charged via the
issuance of a parking charge notice.
… (Contact P4Parking on 0845 556 0789 for clarification of estate Parking Regulations if
unsure) … This Parking Charge will be issued in the form of a Parking Charge notice
totalling £100 which will be reduced if paid within 14 days, please refer to the notice
placed on your vehicle for details of reduced fee(s) … If you park on this land contravening
the above parking restrictions you are agreeing to accept and meet the parking charges
as posted on your vehicle … Enforcement may take place at any time (24 hour controlled
development)”
Moreover she is a resident on the location since 23 December 2010, according to the
Photos of Lease, therefore she cannot claim that she was not aware of the Parking Rules
and Regulations.

3. Furthermore, Mrs. Jennifer Habeeb (Swinden) has been provided with a Parking
Regulation Control Document with the Parking Permit (please find copy of the letter
attached, dated 04/02/2013), in which they were clearly informed:
“P4Parking has been contracted by X Residential Asset Management, the
authorised body representing the land owner(s) of X to
control and manage the parking of vehicles for both the residents and visitors to the
development.
The principle purpose of P4Parking is to ensure that vehicles are only allowed to be
parked on the land with authority. This authority is solely dependent upon the rules as
laid down by the land owners or their authorised agents and is without exception
represented in the conditions as described below.
Please find attached to this document a permit which must be displayed clearly and
prominently on the FRONT windscreen of the parked vehicle at all times whilst parked on
the development.
You may contact P4Parking to purchase a permit holder.
In order to ensure the correct management and processing of such, P4Parking in
consultation with the client or agents thereof has created following parking conditions
for location: X
…

5.

All parked vehicles must clearly display a valid Parking Permit and park in their
designated bay
IMPORTANT INFORMATION
Your valid Parking Permit is PROEMINENTLY, SECURELY and VISIBLY displayed on the
front windscreen of your parked car whilst parked within the managed development. … It
is your responsibility as the permit holder to ensure the permit displayed is valid. Make
sure your vehicle only occupies a single bay. Displaying this letter does not constitute
displaying a permit.
YOU ARE RESPONSIBLE for ensuring your permit is RENEWED & IN DATE not the permit
issuer or distributor. YOU MAY NOT BE REMINDED TO RENEW YOUR PERMIT
All permit queries please call P4Parking on 0845 556 0789”
Please find attached a letter from X Residential Asset Management (the Managing
Agent of the development) dated October 2015, sent to all Residents, informing them of
the parking restrictions taking place on the development (Please find “Residents
information pack-Document Properties.jpeg” to prove that this document has been
created in October 2015).
It was clearly written on the letter, Page 8:
Visitor Parking
Regrettably there is no parking for visitors at the development.
Unless you have an allocated parking space that is free for your visitors to use, you
should advise guests that they are to park off site.
There is short stay parking available in the neighbouring car parks for Argos or Matalan.
It is not permitted for any vehicle to be parked along of the access roads or footpaths at
any time.
Any vehicles parked along the access roads or across a dropped kerb when P4Parking
carry out their patrols will receive a penalty charge notice.
Residents Parking
lf you have the right to use an allocated parking space in one of the car parks, you will
need to display a permit within your vehicle at all times when parked in your allocated
bay.
Permits can be provided by the development manager and concierge on request.
Please note that these permits cannot be used to park anywhere else on the
development.
In order to protect the allocated parking spaces designated to individual residents and to
ensure that vehicles without permits do not park on the development, a parking control
company (P4Parking) is instructed to patrol the development on a daily basis. Penalty
charge Notices will be issued by P4Parking where vehicles have not complied with the
parking regulations set out above.
you have any queries regarding the parking restrictions at New South Quarter, please
speak to a member of the X team on site.
Also, X Residential Asset Management, have sent another 2 letters: on 01/04/2016
and 09/09/2016 to remind motorists of the Parking Conditions and Permits required.
(please find letters attached)
As you can see from all the evidence provided, the appellant has been informed by the
Management: BARRATT RESIDENTIAL ASSET MANAGEMENT, by P4Parking and from the
Parking Signs, that residents are only allowed to park in their allocated parking bay and
only if they clearly display a valid permit in the vehicle, which entitles them to park in
that specific bay.
We would contend that it is too late now to indicate that they are unhappy with the
parking charge – this should have been done at the time of accepting the ‘parking contract’
- if the motorist was unhappy with the contract terms, they should not have remained at
the location. The amount of our charge has been calculated in advance and is clearly set
out on the notices and signage. As such it is accepted on parking and the driver cannot
claim that there are any Trading Standards or Consumer Regulation breaches as they have
accepted the conditions at the point of opting to park at the location since 2010. On
accepting the parking conditions we argue that the complainant cannot now seek to
effectively renegotiate them or to dismiss them in their entirety. The charge of £100
reduced to £60 is as advertised and within BPA guidelines.
We find that, by failing to display a valid permit, the Appellant became liable for a parking
charge notice, in accordance with the terms of parking displayed.
The Appellant left their vehicle unattended without a valid permit and as a result, we find
that the Appellant breached the terms and conditions of parking. The onus is on the
Appellant to ensure compliance with the terms and conditions of parking as set out on
signage at each particular site and on this occasion they did not do so.
We have provided clear evidence that by staying at the location, the motorist has accepted
all of the prevailing terms & conditions of the parking contract including the charges for not
complying with the advertised terms and conditions. There are a large number of signs at
the parking location, both at the entrance and throughout the site which offers the parking
contract to the motorist, and sets out the terms and conditions of the parking area on
which the operator will rely, and on which the motorist has agreed to be bound by which
will become payable if the terms and conditions of parking are not met.
The parking conditions of the development is that permits are to be displayed at all times
when the vehicle is on the development. It is the responsibility of the driver to ensure that
the necessary identifications that authorise them to park are displayed before leaving their
vehicle.
When parking on private land, a motorist freely enters into an agreement to abide by the
conditions of parking in return for permission to park. It is the motorist’s responsibility to
ensure that he or she abides by any clearly displayed conditions of parking.

P4Parking has been contracted by X Resident Management Company Ltd. (the client)
C/o X Residential Asset Management owner/manager of X (the location) to ensure that vehicles are only allowed to be parked on the land with authority.
P4Parking has the authority to charge any vehicle that is parked contrary to these
regulations.
According to the Contract, Site Conditions Control Document (SCCD), page 6, we are
authorised to issue parking charge notices if the mentioned conditions are not followed:
1st Condition: The permit must be displayed at all times in front of the vehicles windscreen
or dashboard only, no other location will be acceptable
2nd Condition: No permits are allowed to be tampered with and must be valid and in date
6th Condition: Parked without displaying a valid disabled badge and permit
Page 7: Development Locations and road names within the Enforcement Area:
X / The appellant resides at X.
Therefore, even if the appellant has been allocated with a parking bay, the land belongs to
X Resident Management Company Ltd. (the client) C/o X Residential Asset
Management, and she has got to abide by their rules.
We are not going to disclose this private contractual agreement between ourselves and our
client to the motorist/appellant that will then have private and confidential information for
him to do whatever he choose to do with it. We will provide a contract to the motorist if
requested by a court of law. This contract is data protected information between 2 parties,
therefore we think is totally against the law for him to insist that we disclose data
protected information as he is not privileged to receive such information. This contract will
only be provided to POPLA, as evidence of us having the authority to issue parking charge
notices on the location.

Paragraph 19.5 states “If the charge is more than £100, operators must be able to justify
the amount in advance”
As the parking charge notice is £100 reduced to £60 if paid within 14 days, it is not required
for us to justify it.
The highest Court in this country decided that ParkingEye’s parking charge of £85 is
enforceable on the basis that it protected a legitimate interest (to deter parking overstays)
and was not extravagant, exorbitant nor unconscionable. The parking charge is not an
unenforceable penalty and does not breach the Unfair Terms in Consumer Contracts
Regulations 1999.
The BPA welcomes the decision which provides clarity on the use of contract law for
parking on private land. The ruling supported the view of the Court of Appeal judges in
April this year and that of Judge Moloney that the charge should be an effective deterrent.
The judgment confirms that the current charging level is lawful and reasonable and
motorists parking on private land must comply with the advertised terms and conditions.
The Supreme Court effectively concludes that the BPA’s Code of Practice for parking on
private land is a good and fair model.
In calculating our loss, we have looked at the costs we incur because motorists do breach
the Terms & Conditions at the locations we manage. If all motorists didn't park where they
shouldn't, paid where they should, didn't overstay and followed all the specified conditions
at the sites we look after for our landowner clients, these costs would not exist.
The £60 sum is within (well within) the recommendations set out within Clause 19 of the
BPA Code of Practice.
This sum, and the calculations which have been made in setting it, has been approved and
agreed by the landowner and/or his agent of the site.
The charge in question is not disproportionately high and insofar as it exceeds
compensation its amount is justifiable, and not in bad faith or detrimental to the
consumer.
Operators are required to provide a reduced rate for the PCN within an initial period. From
the British Parking Association Code of Practice Section 19.7: “If prompt payment is made
(defined as 14 days from the issue of the parking charge notice) you must offer a reduced
payment to reflect your reduced costs in collecting the charge. This reduction in cost
should be by at least 40% of the full charge.” (Please find attached copy of the parking
charge notice X)
The cost of PCNs was considered in Beavis v ParkingEye by the Supreme Court, which on 4
November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the
landowners had a legitimate interest in charging overstaying motorists, which extended
beyond the recovery of any loss. The interest of the landowners was the provision and
efficient management of customer parking for the retail outlets. The interest of ParkingEye
was in income from the charge, which met the running costs of a legitimate scheme plus a
profit margin. Further, the charge was neither extravagant nor unconscionable, having
regard to practice around the United Kingdom, and taking into account the use of this
particular car park and the clear wording of the notices.” Having considered the decision of
the Supreme Court decision, we conclude that the parking charge in this instance is
allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at
the location is clear, the motorist did not keep to the terms and conditions set out on the
signage, and the charge is neither extravagant nor unconscionable.
While the charge in this instance is £100, this is in the region of the £85 charge decided on
by the Supreme Court. By using the car park without clearly displaying a valid permit in the
windscreen, the appellant has parked in breach of the terms and conditions.
Therefore, the parking charge notice was issued correctly by the operative as there was no
evidence on the vehicle windscreen or dashboard showing that the vehicle had authorization to park outside of a marked bay.
I hope this information is enough to prove that vehicle was left in contravention of the site
regulations.
P4 Parking

Coupon-mad

We note the appellant has stated a notice to keeper was not issued correctly in line with POFA 2012. From the evidence you can see a notice to driver was issued on 24 October 2016 at 19:04 and an appeal was received from the registered keeper the following day, on 25 October 2016 at 08:58 (please see APPEAL X.pdf). As she (the keeper) appealled the notice to driver within 28 days, there was no requirement for the operator to issue a notice to keeper.

Wrong, the POFA requires it:

''Right to claim unpaid parking charges from keeper of vehicle
4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met''.

It is the keeper’s responsibility to make sure who was the driver of the vehicle at the time of the parking charge notice being issued.

Sorry?! No it is not. Keepers do not have to know who was driving at any given time as long as the person was allowed to. i.e. if a keeper goes on holiday (or even just goes to work on a daily basis) leaving his car with his family, he does not have any responsibility to 'make sure who was the driver' at any given time!

According to Schedule 4 of POFA 2012 we are able to pursue the keeper of the vehicle for the unpaid parking charge if she refuses to disclose the drivers’ details.

Not without a NTK issued in accordance with paragraph 8.

Mrs. X stated that she is the registered keeper of the vehicle, address: X, therefore, she is liable to pay the parking charge notice as she failed to provide us with the drivers’ details.

Not without a NTK issued in accordance with paragraph 8.

We are not going to disclose this private contractual agreement between ourselves and our
client to the motorist/appellant that will then have private and confidential information for
him to do whatever he choose to do with it. We will provide a contract to the motorist if
requested by a court of law. This contract is data protected information between 2 parties,
therefore we think is totally against the law for him to insist that we disclose data
protected information* as he is not privileged to receive such information. This contract will
only be provided to POPLA,

This operator has just admitted to breaching the rules for POPLA evidence. A consumer MUST be provided with the full evidence pack and this is a significant issue, such that the old POPLA service had a policy of disregarding evidence that an operator refused to show to a consumer. POPLA cannot consider the landowner agreement since it was not provided to the appellant.


* hahahahahahahahahahaha!!!!!!!!!!!!! 'totally against the law...like...I should of paid more attention at skool and I might have been able to write a sentence without sounding like I'm twelve.'

jswinden

thanks coupon - mad. Should I mention these comments or re-state the POFA content you have referenced on the POPLA claim? They have given me 7 days to add comments.

Should I add a comment about the management company not being the landowner?

Thank you

Coupon-mad

Yes and yes, I nearly added that point you mention too. Put your comments on the POPLA portal asap.

jswinden

anything else worth adding as a comment?

Is it the more comments the better?

Coupon-mad

No, less is more at comments stage - be specific and on point, but brief. The POFA issue (lack of NTK) kills it anyway.