Meadowhall shopping centre POPLA Appeal CPPlus

Pinklady0805

Ok great thanks I'll do that.

I've got 4 more CPPlus NTK Letters
All sent 60 days after I received the tickets apart from 1 received 35 days after, should I appeal to them now with the blue template from newbies thread like I have this?

Many thanks

Umkomaas

You have 28 days to appeal to CP Plus from the date of the NtK (not the date of the parking event). After 28 days they are likely to refuse to entertain an appeal.

But there's nothing to stop you trying, even if they refuse, as, should this go to court, a judge could see that you were being reasonable (if a little late) in trying to resolve the matter.

Pinklady0805

Ok thanks, I'll give it a try, not got nothing to lose really at this stage

Pinklady0805

I've I got it right please ? My POPLA Appeal ?

As the registered keeper, I appeal on the following grounds:

1. The charge is not a genuine pre-estimate of loss.
2. No standing/authority to form contracts with motorists
3. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).
4. Unclear and non-compliant signage created no contract with the driver.
5. The ANPR records are unreliable, non-compliant and not proof of one parking event.

************************************************** ************************

1. The charge is not a genuine pre-estimate of loss.
£100 is a sum 'plucked out of the air' by the Operator and it bears no relation to any loss. My proposition is that £100 was chosen because it happens to be the maximum figure the BPA feel is a 'tolerable' amount to impose on motorists, when compared to PCNs issued by Councils on street. There is no valid comparison with a private firm alleging 'breach' in order to maximise their own profits and a real PCN from a Council - but the BPA admitted to the Government that Council PCN amounts were the basis of that figure.

I require CP Plus to explain their new calculations behind this charge. My position is that, any 'new' version cannot be accepted as a genuine PRE-estimate. In fact it is a 'post-estimate' of (arguable) 'actual costs' after the event; figures totted up to match the charge, including fully-counted man-hours for 'POPLA appeal work' when in fact less than 2% of PCNs proceed to POPLA. As this is supposed to be a pre-estimate relating to the typical loss caused by an average breach (whether the PCN is appealed or not), any man-hours must be counted only on a minimal pro-rata basis, i.e. they 'might' reasonably count only 2% of the time taken on a POPLA appeal, since the over 98% of cases involve no POPLA work whatsoever.

In the 2014 POPLA Annual Report the Lead Adjudicator, Mr Greenslade, stated, “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

If CP Plus present what they describe as a GPEOL statement I require them to show documentary evidence regarding exactly when this 'pre-estimate of loss' was discussed with the landowner in advance, and/or at any substantive meeting. How/when were these calculations made and on what basis? I put CP Plus to strict proof that they ever had such a meeting.

If there was no meeting to discuss the £100 charge in advance then there was never a pre-estimate of loss discussion at all, as was found in April 2013 in 1IR65128 Brookfield Aviation Int. Ltd. v Van Boekel, where by HHJ Hand QC concluded in his summary at 94:
''I do not believe the evidence...that there was ever an attempt at a genuine pre-estimate of loss. I have found that there was no meeting in 2007...it seems to me that a conclusion that there was never any attempt at a genuine pre-estimate of loss is of some significance...Finally, the fact that the figure was arrived at by reference to what pilots might be prepared to tolerate...shows to my mind that in so far as the Claimant made any calculation as to amount, that calculation related to the balance between deterring breach and enforcing the notice period on the one hand and deterring recruitment on the other. In short, the sum stipulated for was not a genuine pre-estimate of loss but an “in terrorem” sum to deter breach and as such is a penalty.''

A direct comparison can be drawn with Brookfield v Van Boekel that, so far as CP Plus made any calculation as to amount, that calculation related to the balance between deterring breach and enforcement on the one hand and deterring customers, on the other. £100 was simply the maximum set by the BPA, a sum which motorists might 'tolerate'.

I contend that the figure of £100 is a penalty clause in terrorem to deter breach, neither can it be commercially justified.

POPLA Assessor Chris Adamson stated in June 2014 that:
''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”. This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

2. No standing/authority to form contracts with motorists
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. I contend that they merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. Authority to merely 'issue tickets' is not the same authority as a right to form contracts in their own right, with visiting drivers. As a commercial site agent acting under an agency agreement 'on behalf of' the a principal, CP Plus has negative responsibility and no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA CoP.

I put CP Plus to strict proof to provide an unredacted, contemporaneous copy of the contract which - to demonstrate standing and authority - must specifically state that CP Plus can make contracts with drivers themselves and that they have full authority to pursue charges in court in their own name. A witness statement to the effect that a contract is in place will not be sufficient because it will not show which restrictions are to be enforced, what the times/dates/details of enforcement are. How will I know that the landholder contract allows CP Plus to charge £100 for this particular contravention if the contract is not produced? Showing a piece of paper signed by someone who has never seen the actual contract, saying merely that CP Plus can put up signs and 'issue parking charges' would not prove that they can form contracts with drivers nor show that they can charge this amount for this contravention.

3. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).
In order to pursue Keeper Liability under the POFA, CP Plus must have met the strict conditions in the Act. However, they have failed to fulfil the requirements of the “Notice to Keeper” (‘NtK’) as per para. 9 Sch 4 of the Act which reads in part:

“(1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2) The notice must—
(b) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i) to pay the unpaid parking charges; or
(ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(h) identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(4) The notice must be given by:
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.”

The NTK fails due to the following reasons:
The following points (A)-(E) may be observed as flaws in this NTK, making this non-compliant under the POFA 2012:

(A) The 'period of parking' is not 'specified', only the times the car was seen in traffic on arrival and on the final time it left that day. There's no evidence of parking at all.
(B) It does not inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(C) It fails to describe any alleged unpaid parking charges “for the specified period of parking” (a period which was not specified). POFA requires that a NTK describes any 'outstanding' 'unpaid' charges which the driver owed as at a time not later than the DAY BEFORE the issue of the postal NTK. The sum for breach of contract cannot be described as ‘unpaid by the driver’ prior to the day the NTK was issued, because it only arises and could be described as 'unpaid', if at all, at/after the time of receipt of the NTK by the keeper. The inflated PCN amount now being pursued for 'breach' should not be confused with the sum intended by Schedule 4 of the POFA, just because it is also - coincidentally, perhaps - called a ‘parking charge’. The timelines are clearly stated in the Act and it is clear that the Act requires any unpaid tariff that the driver owed before the NTK was issued, to be stated - and that this is the only sum that can be pursued from a registered keeper.
(D) It does not identify the creditor, who could be the landowner, a retailer, a managing agent, or the Operator, or another party. The fact that an Operator's name is on a NTK as the payee, does not 'identify' them as the creditor because administrative functions such as sending notices and collecting monies can be carried out by other parties, such as agents and debt collectors who are never 'the creditor'. This Operator could simply be an administrator, a debt collector only - the creditor could be any other party if not specified here. Such basic detail cannot be assumed. The creditor has to be 'identified' with words to the effect that 'the creditor is...'.
(E) The NTK fails to show the arrangements for complaints and the geographical address of the client/landowner, since this Operator is an agent . This is a requirement for all consumer contracts since June 2014, in accordance with the Consumer Contracts (Information, Cancellation and Additional Charges) Regs 2013 and also a breach of the POFA not to include full details of such arrangements for complaints.

The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means there is no 'keeper liability'.

In this case the driver has not been identified so the charge has no legal basis to be enforced against me.

4. Unclear and Non-compliant signage which created no contract with the driver, who did not see any signs.
Operators of Motorway Services Areas (MSAs) and their agents must comply with Government Policy. The Highways Agency, on behalf of the Department for Transport (DfT), published a policy on the provision of roadside facilities on its network, the 'DfT Circular 01/2008: Policy on Service Areas andother Roadside Facilities on Motorways and All-purpose Trunk Roads in England'. The policy states at B19: 'At all types of site, where a charge is to be levied for parking beyond the mandatory two free hours, the charging regime must be clearly displayed within both the parking areas and the amenity building.' Compliance of the MSA with the above policy is disputed and I therefore require CP Plus to prove that such clearly displayed signage exists within the amenity building(s) at the car park in question. It is not enough to prove that such signage exists merely within the car park itself and that point is covered separately in my appeal.

Furthermore the policy states: 'All signing of roadside facilities and signing arrangements within sites must comply with the current Traffic Signs Regulations and General Directions {TSRGD} and any other guidance as may be issued from time to time by the Department for Transport or the Highways Agency. Approval must be sought from the
Highways Agency’s signs specialist for the use of all non-prescribed signs.' I put CP Plus to strict proof that the DFT/Highways Agency has granted special authorisation for their traffic signs (any signs relating to traffic) in this particular MSA to be exempt from this policy requirement. It will not be acceptable for CP Plus to claim that these particular signs are in their own opinion not 'traffic signs' when these signs provide information to vehicle users in moving traffic, who may never leave their vehicles.

Failure to comply with Government policy would render the alleged contract unenforceable.

In any case, unless signs are seen and understood before parking, they are not imported into any contract. In a free car park, where the Operator does not own the land (the named principal being the only party capable of offering the spaces and other amenities in the facility), there is no possibility of a contract, since no consideration can flow between a driver and a site agent. No money/offer/promise/permit or any other tangible nor implied nor executory consideration was capable of being exchanged with CP Plus in this case.

I have recently driven this same route to check signage and the only clear invitation is on the MSA's own approach signage which offers 'free parking' and other roadside amenities. I had to search to find CP Plus signs and was unable to make out the terms as the signs are at the top of poles. The driver, having parked the vehicle or driven through to get petrol (or having done both) would have relied upon the free parking offer from the MSA and no doubt saw no signs by CP Plus at that time.

Their signage is not lit or reflective and is not so prominent that it 'must' have been seen among the myriad clutter of signs and information in a busy MSA. Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of it and agreed. The opposite is true in an MSA where the landholder's approach signs, brightly lit and with symbols, are very clear that free parking is offered to enable tired motorists to take a break - without strings or stated restriction. It was the MSA's own roadside approach sign advertising the services which formed the only possible offer and contract with the driver.

No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163,Court of Appeal). Lord Denning continued: 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'

5. ANPR records are unreliable and not proof of one parking event.
The charge is founded entirely on two photos of my vehicle entering/leaving the car park at specific times. I put CP Plus to strict proof that their ANPR system is not fundamentally flawed because of known issues such as missing checks and maintenance of the timer/cameras and the possibility of two visits being recorded as one. The Operator's proof must show checks relating to my case/my vehicle, not vague statements about any maintenance checks carried out at other times.

The 'two visits recorded as one' problem is very common and is even mentioned on the BPA website as a known issue:
http://www.britishparking.co.uk/How-does-ANPR-work
The BPA says: ''As with all new technology, there are issues associated with its use:
Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.''

Since I am merely the registered keeper, I have no evidence to discount the above possibilities. CP Plus show no parking photographs so they cannot say for certain that the car was not involved in non-parking related activity - e.g. queuing or filling up with petrol or water, nor can they show the car did not leave the site and return. This could easily be a case of two visits, or if my vehicle was on site for the time shown, I suggest that it may well not have been 'parked' for more than 2 hours. There is a petrol station on site, as well as air and water, so I put CP Plus to strict proof of actual parking for over two hours with no other petrol station-related activity. Even if the car first drove past the cameras and though the car park the driver may have decided to get petrol whilst the passengers were in the MSA facility and so 'parking' for over two hours would not have occurred. The Government rules require a full two hours free parking to allow a driver to rest. So I require CP Plus to rebut these assertions.

I agree with the BPA that this ANPR technology has issues associated with its use. These also include (but are not limited to) synchronisation errors, buffering, faults with the timer, faults with one or other of the cameras, faults with the wireless signals and differences between the settings of the in/out clocks. The operator uses WIFI with an inherent delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever accurate to the minute.

In addition, the BPA CoP contains the following in paragraph 21:
''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''
CP Plus fail to operate the system in a 'reasonable, consistent and transparent manner'. They place signs far too high to see on arrival and these are not lit, so there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret high-up spy camera - far from 'transparent' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.

Umkomaas

Please tell us honestly - have you just found this in some old random thread and blindly copied and pasted it? Because:

1. The charge is not a genuine pre-estimate of loss.

GPEOL as a viable appeal point has been dead and buried for almost 2 years.

Operators of Motorway Services Areas (MSAs) and their agents must comply with Government Policy. The Highways Agency, on behalf of the Department for Transport (DfT), published a policy on the provision of roadside facilities on its network, the 'DfT Circular 01/2008: Policy on Service Areas andother Roadside Facilities on Motorways and All-purpose Trunk Roads in England'. The policy states at B19: 'At all types of site, where a charge is to be levied for parking beyond the mandatory two free hours, the charging regime must be clearly displayed within both the parking areas and the amenity building.' Compliance of the MSA with the above policy is disputed and I therefore require CP Plus to prove that such clearly displayed signage exists within the amenity building(s) at the car park in question. It is not enough to prove that such signage exists merely within the car park itself and that point is covered separately in my appeal.

What have Motorway Service Areas got to do with staff parking at Meadowhall?

5. ANPR records are unreliable and not proof of one parking event.

What has ANPR got to do with anything when you tell us that CP Plus has a man with a list of car registration numbers going around with a book of tickets.

Sorry, but if you're going to throw any old junk at this without any seeming reading, understanding and asking yourself does all/any of this apply to your parking issue, then why should any regular give a sizeable amount of their own time to try to untangle all of this.

Have you even followed my advice given earlier today:

The ticket you refer to for which you seem to have a current POPLA code should be appealed to POPLA. Use the templates from post #4 of the NEWBIES FAQ sticky as your starting point. Put your effort into getting this POPLA appeal right, then should it be successful, it will be very useful evidence to present to the court should your other tickets end up there.

Particularly the section of the sticky I referred you to, and especially to this:

Put your effort into getting this POPLA appeal right, then should it be successful, it will be very useful evidence to present to the court should your other tickets end up there.

Pinklady0805

Ok, see I'm getting all confused. I've read so much! Right I'll head back to newbies thread

Pinklady0805

Do I get it now.... no evidence supplied with NTK and vehicle was parked in normal parking bay?

Redx

include poor and inadequate signage , no contract with landowner , any BPA CoP errors , any NTK errors and add any evidence such as pictures you have taken, plus the NOT THE SAME AS BEAVIS paragraphs, embed as a pdf and then submit the pdf once its approved for submission by choosing OTHER and uploading the pdf and any evidence to popla

use post #3 of the NEWBIES sticky thread to draft your appeal

do not read or use old appeals that are before 2017

do not try to use not a gpeol , not since beavis lost 2 years ago

do not include stuff that isnt relevant like MSA,s

RobinofLoxley

Pinklady0805 wrote: »

I've got 4 more CPPlus NTK Letters
All sent 60 days after I received the tickets apart from 1 received 35 days after.

Are these 4 NTK's in addition to the 5 you mentioned earlier?

If they were sent to you more than 56 days after the day of the 'parking event' + 1 day, they have been sent to late and don't conform to the requirements of POFA. Then again may not be relying on POFA to transfer the liability of the charge to yourself, the keeper.

RobinofLoxley

Sorry about all the questions but the situation is taking some unravelling.

What was the issue date on the PCN (Parking Charge Notice) you received through the post and have appealed against to CP Plus. The one where they have rejected your appeal and give you a POPLA number.

You will have about 30 days from the issue date to send in your appeal to POPLA.

We can help you with putting together your POPLA appeal. Some points you mentioned in your draft appeal shouldn't be used.

Pinklady0805 wrote: »

I've I got it right please ? My POPLA Appeal ?

As the registered keeper, I appeal on the following grounds:

1. The charge is not a genuine pre-estimate of loss.
2. No standing/authority to form contracts with motorists
3. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).
4. Unclear and non-compliant signage created no contract with the driver.
5. The ANPR records are unreliable, non-compliant and not proof of one parking event.

#1. GPEOL doesn't apply anymore.
#2. ANPR systems don't come into play here.

Another thing, you say they are asking for £120 as the 'parking charge'. the British Parking Association say the maximum amount that should be charged is £100.

It would be useful if you could scan or photograph a PCN (NTK) and put the image up here for us to see if possible. Make sure you cover up/ block out any info that might identify you or your vehicle. I.E. name, address, vehicle registration number, PCN number etc..

Also is the PCN (Parking Charge Notice) you appealed the last one you have received or have you had another one since?