Is it worth appealing through POPLA?

Fablewynd

Thank you for that. As you can see in all the images, it's very hard to actually make out much in them. Even the dashboard images, with the torch, show very little in them. The permit itself was in the front.

I mean, theoretically, could I even say that it was displayed in the rear windscreen since they didn't even properly take a picture of it? Technically they can't prove that it wasn't displayed there because they haven't taken pictures of it.

nosferatu1001

Except they could find this thread, and then show you lying
Stick to the truth.

Fruitcake

Revealing the driver's identity in an own space case is not fatal, and often helps as you can say, my lease says, my lease does not say, this is my space etcetera. Not revealing the driver's identity is the normal default point, and can be changed later if it helps. Doing it the other way cannot be reversed which is why we always say, do not reveal who was driving first.

You do need to see what your lease/AST says about parking, parking permits, and about paying a third party scammer.


If it is silent on the subject of permits or third party scammers then it begs the question why you are showing a permit at all.

This is what judges have said about residential parking.

http://parking-prankster.blogspot.com/2016/11/residential-parking.html

You should complain to your landlord/landowner and MA about this unregulated scam which is targeting genuine residents.

You should also complain to your MP.

These are some of the comments made by the MPs in Parliament concerning the unregulated parking industry (Feb 2018):

https://hansard.parliament.uk/commons/2018-02-02/debates/CC84AF5E-AC6E-4E14-81B1-066E6A892807/Parking(CodeOfPractice)Bill

''Rip-offs from car park Cowboys must stop''; unfair treatment; signage deliberately confusing to ensure a PCN is issued; ''years of abuse by rogue parking companies''; bloodsuckers; ''the current system of regulation is hopeless, like putting Dracula in charge of the blood-bank''; extortionate fines; rogue operators; ''sense of injustice''; unfair charges and notices; wilfully misleading; signage is a deliberate act to deceive or mislead; ''confusing signs are often deliberate, to trap innocent drivers''; unreasonable; a curse; harassing; operating in a disgusting way; appeals service is no guarantee of a fair hearing; loathed; outrageous scam; dodgy practice; outrageous abuse; unscrupulous practices; ''the British Parking Association is as much use as a multi-storey car park in the Gobi desert''; and finally, by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.

These are the exact words used, so you should quote them to your MP in a complaint and ask him/her to contact Sir Greg Knight MP if he wants further information about this scam.

Fablewynd

So, I have just looked at my rental contract and there is nothing in there that states it is my responsibility to display a permit in my car to park in my space. In fact, it doesn’t state anything in my tenancy agreement about parking. Other than my landlord giving me he parking permit and telling me which my space was, I don’t have anything written down in a contract that I have signed to say I accept that I need to display the permit.

I don’t know whether it’s good or bad that it’s not in my contract. So, now that I know I don’t have it in my contract, I’m wondering how best to approach this POPLA appeal. If anyone has any advice I’d be most appreciative.

Coupon-mad

POPLA won't take that into account. A court would, but POPLA won't.

I have never had a parking ticket before, so I wasn't sure of the process. I thought I had to appeal first.

You did, but as the registered keeper...next time no saying who parked! Eeek!

My understanding was that if I lost the POPLA I would have to pay the £100 because they could take me to court over it.

So what?

I *could* take you to court over something, your neighbour *could*, anyone at all *could*. Most small PPCs do not, and no-one ''has to pay'' if they are a rare case lost at POPLA.

We win 99% of defended cases and at that stage your tenancy would be taken into account, just not by POPLA, they don't consider tenancy rights, just signs/facts that are easy for their non-legally trained ''assessors''.

You don't appear to have read the third post of the NEWBIES thread yet and found the POPLA templates. They are there to be used in every case.

Fablewynd

Coupon-mad wrote: »

You don't appear to have read the third post of the NEWBIES thread yet and found the POPLA templates. They are there to be used in every case.

I've had a look at it, but am struggling to work through the legal jargon to see which bit actually relates to my case. I looked under the 'Permit car parks (residential 'own space' appeals, or industrial/employer car parks where the car was permitted):' section, but I think all the links just relate to ticket machines, and not me parking in my own car park space with a permit in my car that the agent couldn't see because it was dark.

I'll have a look through some other forum posts to see if there's anything similar to this that I can borrow.

Fablewynd

Okay, so, this is what I have so far. Would any of you kind folks be able to look over it and give your input on what I could possible add, remove, or reword?

1. Insufficient evidence that a parking permit was not displayed
The vehicle, belonging to the resident, was parked in the allocated parking space for that resident at the time the ticket was issued, and a permit was displayed within the vehicle. I refer you to the below images that the Operator supplied as evidence that a permit was not displayed in the vehicle. The images are taken at night, with the aid of a torch, and thus do not provide the necessary clarity to prove that a parking permit was not displayed in the vehicle. The images of the front windscreen are obscured, and no images of the rear windscreen were taken, other than at a distance and in the dark, where anything inside the vehicle (i.e. the permit) could be seen. As such, due to the insufficient evidence to prove that no permit was displayed, I therefore respectfully request that my appeal be upheld and the charge dismissed.

2. The case at hand involves a private parking area for residents with allocated spaces. The vehicle was parked in the allocated bay with full authorisation. Therefore is no loss to anyone.
As the charge in this case is the same lump sum charged for any alleged ‘breach’ (e.g. irrespective of whether the vehicle is parked for 10 minutes or 24 hours or had received permission from the individual entitled to authorise parking in this designated parking bay etc) it is clear the charge is a punitive measure and no consideration has been given to calculating a genuine pre estimate of loss in this case.

In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred to either the Operator or to the Landowner. I would also refer them to the Unfair Terms in Consumer Contract Regulations, which states parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there. I remind them that the amount in this case is nothing.

The Operator has stated in their Appeal Rejection letter, the costs they deem to be a genuine pre-estimate of loss incurred at the time of issuing the Penalty Charge Notice in this case. This has included -
• Staff wages and salaries including Employers national insurance
• 24 hours availability customer service and telephone expenses
• Supervisory staff and vehicles, training, uniforms, ad hoc mobile patrols
• Parking payment and enforcement equipment to include hand held devices, cameras etc
• Fuel expenses
• Erection and maintenance of the site signage
• Cost of appeal adjudicator staff
• POPLA Appeals Fee
• Public insurance liability
• Data protection costs

This submission is to be relied on. A substantial proportion of the costs stated by the Operator are business costs and not obviously a loss arising. As stated in POPLA key case by adjudicator Henry Michael Greenslade in SBV v KMJ (POPLA Nov 2013) -
‘A genuine pre-estimate of loss is just what it says. The sum should represent a loss, not a profit. It is not the business overheads of the operator.’

In relation to staffing costs etc Judge Charles Harris QC in A Retailer v Ms B stated:

"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said "the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".

The operator has stated loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.

Additionally Henry Michael Greenslade in SBV v KMJ (POPLA Nov 2013) states -
‘On the face of it, fees incurred by an operator in an appeal to POPLA might be a recoverable loss but the whole ethos of the appeals system is that there is no charge to the motorist’. I therefore contend there is to be no charge to the Motorist for this and cannot be included as a loss. It is also not a reasonable cost to be incurred at the time the PCN was issued.

This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the alleged breach.

Consequently the Operator has produced a list of costs where a substantial proportion of costs are general operational costs, and not losses consequential to the alleged breach. The operator would be in the same position whether or not any alleged breach had occurred.

POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and is not commercially justified or proved to be a genuine pre estimate of loss. I respectfully request my appeal is upheld and the charge dismissed.

3. Contract with Landowner
The Operator does not own the land in question and has provided no evidence they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary or agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA code of practise, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practise to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provides a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Should a basic contract be produced mentioning parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.

4. The alleged contravention did not occur
The vehicle was parked in the designated bay with full permission and authority from the designated owner of the parking bay, at the time of the alleged breach. It is a well established legal doctrine that an existing contract cannot be unilaterally altered. In the case of residential parking, the existing contract would come into place when the tenancy agreement is signed. As the tenancy agreement does not make mention of the requirement for a parking permit to be displayed in order to park in the designated space for the residence this existing contract supersedes any terms and conditions on the signage.

5. The contract is unenforceable
The signage does not mention who the ‘contract to park’ is with. Private Parking Solutions are mentioned on the bottom of the sign, but nowhere does it say they are the offeror of the contract and therefore does not meet English Contact Law, making both the contract and this parking charge unenforceable.

Le_Kirk

The images of the front windscreen are obscured, and no images of the rear windscreen were taken, other than at a distance and in the dark, where anything inside the vehicle (i.e. the permit) could be seen.

This is a bit confusing. I know what you are trying to say but you have to spell it out for POPLA assessors. Perhaps it should say ... where anything inside the vehicle could not be seen.

Fablewynd

Le_Kirk wrote: »

This is a bit confusing. I know what you are trying to say but you have to spell it out for POPLA assessors. Perhaps it should say ... where anything inside the vehicle could not be seen.

Ah, thank you for pointing that out. Yeah, I have amended that bit to make it more clear. Is everything else alright?

Fablewynd

Updated my POPLA appeal a bit more, adding more into section 4. Do you think this would be substantial enough, as is, to send off to them?

1. Insufficient evidence that a parking permit was not displayed
The vehicle, belonging to the resident, was parked in the allocated parking space for that resident at the time the ticket was issued, and a permit was displayed within the vehicle. I refer you to the below images that the Operator supplied as evidence that a permit was not displayed in the vehicle. The images are taken at night, with the aid of a torch, and thus do not provide the necessary clarity to prove that a parking permit was not displayed in the vehicle. The images of the front windscreen are obscured, and no images of the rear windscreen were taken, other than at a distance and in the dark, where anything inside the vehicle (i.e. the permit) could not be seen. As such, due to the insufficient evidence to prove that no permit was displayed, I therefore respectfully request that my appeal be upheld and the charge dismissed.

2. The case at hand involves a private parking area for residents with allocated spaces. The vehicle was parked in the allocated bay with full authorisation. Therefore is no loss to anyone.
As the charge in this case is the same lump sum charged for any alleged ‘breach’ (e.g. irrespective of whether the vehicle is parked for 10 minutes or 24 hours or had received permission from the individual entitled to authorise parking in this designated parking bay etc) it is clear the charge is a punitive measure and no consideration has been given to calculating a genuine pre estimate of loss in this case.

In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred to either the Operator or to the Landowner. I would also refer them to the Unfair Terms in Consumer Contract Regulations, which states parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there. I remind them that the amount in this case is nothing.

The Operator has stated in their Appeal Rejection letter, the costs they deem to be a genuine pre-estimate of loss incurred at the time of issuing the Penalty Charge Notice in this case. This has included -
• Staff wages and salaries including Employers national insurance
• 24 hours availability customer service and telephone expenses
• Supervisory staff and vehicles, training, uniforms, ad hoc mobile patrols
• Parking payment and enforcement equipment to include hand held devices, cameras etc
• Fuel expenses
• Erection and maintenance of the site signage
• Cost of appeal adjudicator staff
• POPLA Appeals Fee
• Public insurance liability
• Data protection costs

This submission is to be relied on. A substantial proportion of the costs stated by the Operator are business costs and not obviously a loss arising. As stated in POPLA key case by adjudicator Henry Michael Greenslade in SBV v KMJ (POPLA Nov 2013) -
‘A genuine pre-estimate of loss is just what it says. The sum should represent a loss, not a profit. It is not the business overheads of the operator.’

In relation to staffing costs etc Judge Charles Harris QC in A Retailer v Ms B stated:

"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said "the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".

The operator has stated loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.

Additionally Henry Michael Greenslade in SBV v KMJ (POPLA Nov 2013) states -
‘On the face of it, fees incurred by an operator in an appeal to POPLA might be a recoverable loss but the whole ethos of the appeals system is that there is no charge to the motorist’. I therefore contend there is to be no charge to the Motorist for this and cannot be included as a loss. It is also not a reasonable cost to be incurred at the time the PCN was issued.

This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the alleged breach.

Consequently the Operator has produced a list of costs where a substantial proportion of costs are general operational costs, and not losses consequential to the alleged breach. The operator would be in the same position whether or not any alleged breach had occurred.

POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and is not commercially justified or proved to be a genuine pre-estimate of loss. I respectfully request my appeal is upheld and the charge dismissed.

3. Contract with Landowner
The Operator does not own the land in question and has provided no evidence they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary or agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA code of practise, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore, it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practise to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provides a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Should a basic contract be produced mentioning parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld, and the charge dismissed.

I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.

4. The alleged contravention did not occur
The vehicle was parked in the designated bay with full permission and authority from the designated owner of the parking bay, at the time of the alleged breach. It is a well-established legal doctrine that an existing contract cannot be unilaterally altered. In the case of residential parking, the existing contract would come into place when the tenancy agreement is signed. As the tenancy agreement does not make mention of the requirement for a parking permit to be displayed in order to park in the designated space for the residence this existing contract supersedes any terms and conditions on the signage.

In the case of Pace Recovery and Storage v Mr N September 2016, Mr N had the temerity to park outside his own home, in his own parking space, without displaying a permit. Pace Recovery and Storage (trading as ACE Security) issued him a parking charge, and when Mr N declined to pay it, took him to court.
In the hearing, Mr N produced his tenancy agreement, which showed he had the unrestricted right to park. 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.'

5. The contract is unenforceable
The signage does not mention who the ‘contract to park’ is with. Private Parking Solutions are mentioned on the bottom of the sign, but nowhere does it say they are the offeror of the contract and therefore does not meet English Contact Law, making both the contract and this parking charge unenforceable.