Complaining to the land-owner

George_Adye

Hello all,

I have a parking charge notice from First Parking. This occurred after parking in a disabled parking space at Bath University. I have already appealed, and have admitted I was the driver (etc.) as I stupidly reacted to the charge before doing research into how to potentially avoid it.

Because of this, I will be paying the reduced rate of £30 by Friday. However, I would still like to claim my money back. I want to complain to the landowner (the University) about the charge. Points (admittedly non-legal) in my favour are:

1. I drove around for over half an hour looking for a parking space, causing me to miss my appointments. Even the overflow of the overflow was full (and I have never seen this happen before). After checking all 4 car parks, there were no spaces
2. Many other disabled bays were unoccupied
3. The parking system is viewed overwhelmingly negatively by students and staff. Universities also have extensive student support and complaint systems
4. I have paid £140 to be able to park at the University for a year

Can anyone provide me with some advice for my complaint? Perhaps point 4 could be expanded on - they are breaching terms of service?

fisherjim

You don't stand much chance in getting your money back to be honest, you will be paying a scamming parking company who will not give up their Ill gotten gains, and subsequently complaining to the landowner will be too late.

Half_way

You are under no obligation to pay the parking company

Coupon-mad

Because of this, I will be paying the reduced rate of £30 by Friday

No you won't, don't be daft.

The parking system is viewed overwhelmingly negatively by students and staff.

My nephew laughs at it - this is only F1rst! Have you not read any other F1rst threads yet?! Why not win at POPLA.

George_Adye

Right, so I've put together a largely copy-pasted appeal to POPLA. I am on the verge of just paying the reduced fine, by tomorrow, though. I think my case is lessened given that I was in a disabled parking spot and I have admitted that I am the driver. The points made in my appeal certainly avoid the fact that I was in a disabled bay. Please advice.

I write to you today as the registered keeper of the vehicle XXXXX, I wish to appeal the £60 Parking charge notice (PCN) issued by F1rst Parking.

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

1. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
2. No standing or authority to pursue charges nor form contracts with drivers.
3. Unclear and non-compliant signage, forming no contract with drivers.
4. Unreasonable and unfair terms – no contract agreed to pay £75. Fails the ‘Aziz test’.
5. No genuine pre-estimate of loss.

1. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.

First has failed to comply with POFA. Schedule 4 paragraph 8 of the POFA stipulates the mandatory information that must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver. The NTK issued by First fails on four counts:
• 8(2)(a) – there is no mention of the period of parking to which the notice relates. It mentions the date and time of the event but gives no indication of how long the car was parked there, thus the period of parking.
• 8(2)(b) – the notice does not advise that the driver is liable for the parking charge and the amount and that it has not been paid in full
• 8(2)(c) – the notice does not state that a notice to driver relating to the specified period of parking has been given
• 8(2)(i) – the notice does not specify the date of on which the notice was sent. While it does have a date of issue, this give no indication as to when the notice was sent.

As the Notice to Keeper fails to meet these requirements, the keeper cannot be held liable.


2. 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, F1rst Parking 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 no 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 F1rst Parking to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between F1rst Parking 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 F1rst Parking

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.


3. Unclear and non-compliant signage, forming no contract with drivers.

The signs do not meet the minimum requirements in part 18 of the BPA code of practice. They were not clear and intelligible as required.

The BPA Code of Practice states under appendix B, entrance signage:

“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.

When with reference to the BCP Code of Practice, it actually states:

"There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision". After inspecting the signs after the driver received the charge, I noted that the signs are grey and small text that is difficult to read. The signs were also unlit which makes them very difficult to read in the hours which the car park is free to park (6pm-8am), especially during winter. These were easily missed as they are on one end of the car park only, with low height which could easily be concealed by cars, and not by any lighting.

There were no signs or road markings to indicate that the area was private property or in any way restricted, and no signage indicating the area was private before entering the road.


4. Unreasonable and unfair terms – no contract agreed to pay £75. Fails the ‘Aziz test’.

I also wish to reference the Aziz test (as my case is different to that of Beavis v ParkingEye) in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.”

And as for whether average consumers 'would have agreed' to pay £75 had there been negotiations in advance, the answer here is obviously no. One could have parked free on road at this time of night (from 6pm-8am). There would have been no justification or negotiation that could have possibly have persuaded an average consumer to pay £75 to this parking firm. Their charge relies upon unseen terms, not clear contracts, and should not be upheld.


5. 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 ParkingEye and the motorist. This was not changed by the later judgment in the Supreme Court .

This is in stark contrast to the present case where there is an economic transaction between the Operator and the motorist, and no restriction on the time of stay was made provided payment of the tariff was made.

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 ParkingEye v Beavis the judgment in which is irrelevant in this situation.

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 the 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.

Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

Yours faithfully

Fruitcake

You can't use the POFA if you have admitted who was driving.

Not a genuine pre-estimate of loss is 18 months out if date since the Beavis case.

Your signage appeal point is far too short.

Please read post 3 of the NEWBIES thread and use as many of the template appeal points available that are relevant.

George_Adye

Ok. I will repost here after looking at that thread. Can anyone comment on the fact that I've parked in a disabled bay?

Coupon-mad

Nope, that's not a good thing, never in your favour and not something to even mention or 'excuse' in a POPLA appeal. Use the templates instead.

George_Adye

I'm trying to work out if there's any point in this. If I pay tomorrow the charge will be £30. If I lose the appeal it will be £60. Therefore it is only worth appealing if there is >50% chance of winning the case. As I am inexperienced with this kind of thing, I've no idea what the success rate is

Coupon-mad

If I pay tomorrow the charge will be £30. If I lose the appeal it will be £60.

You miss the point, you do not have to pay.

George_Adye

If the chance of a successful appeal is less than 50% it is rational to pay at the discounted rate.