Is it worth appealing through POPLA?

Coupon-mad

'Permit car parks (residential 'own space' appeals, or industrial/employer car parks where the car was permitted):'

Surely they are examples from post #2 (court defences)?

I directed you to the template words in post #3, and I can tell you have not used the template about signage or landowner authority, for example. The words to use are there for the taking in the third post of the sticky.

Loadsofchildren123

Where was your permit? The photos are dark but they do appear to show the whole dashboard. Could you take a pen to the photos to show where your permit is and why you can't see it in the photos?


Re displaying in rear windscreen, the t&cs will most likely say to be displayed in the front windscreen.


How do you know your permit was displayed on this occasion? Do you keep it stuck to the windscreen?


All of these issues are separate from the argument that your tenancy doesn't impose these terms on you and a third party can't come along later and add new contractual terms (permit) to a pre-existing contract (tenancy) or offer you a contract (parking) in respect of rights you already have (tenancy).

Fablewynd

Thank you for the responses,

I have now used some of the templates from post #3 as directed, mainly the landowner authority. I think the signage in the car park was pretty clear, so I don't know if it would be that applicable (correct me if I am wrong). The signs also did not state whether the windscreen was front or rear.

Regarding the fact that the issues of the permit are separate to the argument of the tenancy not imposing these terms, would it be counter productive to use this argument? Should I just leave that bit out, and just go with the tenancy/landowner stuff, or should I still mention it?

Below is my revised POPLA appeal:

Dear POPLA,
PCN Number: xxx
POPLA Verification Code: xxx


I write to you as the registered keeper of the vehicle XXX, I wish to appeal the £100 Parking Charge Notice (PCN) issued by XXX.
As the keeper of the car, and resident of the property at which the ticket was issued, I had full rights to park in the space which is allocated to me as part of my tenancy lease. The permit was displayed within my car, but due to the time of day (five minutes to midnight), the pictures provided by XXX are obscured because it was dark, and a torch was required to illuminate the vehicle in order to take the images. As such, I believe that the Operator was unable to prove that a permit was not displayed. Regardless of this fact, I also submit the parking charge is not valid due to the fact that my lease allows me to park in the designated space without additional contracts imposed by XXX. Whether I have or have not displayed a permit is irrelevant, as the tenancy contract does not require me to display one.
Therefore, I submit the reasons below to show that I am not liable for the parking charge:

1. Insufficient evidence that a parking permit was not displayed
2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
3. This charge is incompatible with the rights under the lease - as decided by the Appeal case in Croydon Court for Pace Recovery and Storage v Mr N (C6GF14F0) 16/09/2016, which also held that the Beavis case does not apply to this sort of car park.
4. 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.

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.

Even if point 1 is refuted, I resolve that this charge be dismissed on the following points:

2. 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.
The contract, and any 'site agreement' or 'User Manual' setting out details - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.
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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.
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

3. This charge is incompatible with the rights under the lease - as decided by the Appeal case in Croydon Court for Pace Recovery and Storage v Mr N (C6GF14F0) 16/09/2016, which also held that the Beavis case does not apply to this sort of car park.
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 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 on the contract-breaker out of all proportion to any legitimate interest [...] in the enforcement of the primary obligation'.
There can be no legitimate interest in punishing authorised parking, under the excuse of a 'parking' scheme where ostensibly - and as far as the landowner is concerned - the parking firm is contracted for the benefit of the leaseholders/landholders/tenants. It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' to issue a parking penalty for permitted parking by a driver who has legitimate residence and rights to do so.
These rights supersede any signs, which are of no consequence except to deter rogue unwanted drivers from leaving their vehicles when they have no business on site. This is true of any residential or business car park where tenants/leaseholders (who may be individuals or businesses) enjoy legal 'rights of way' which extend to drivers permitted to park. A third party cannot unilaterally alter the terms of a tenancy agreement or a lease, nor disregard easements and rights of way that prevail in such car parks (residential or industrial).
This question was tested recently in an Appeal case in September 2016. Please note this is an Appeal case, decided by a Senior Circuit Judge and as such, its findings on the definition of 'parking as opposed to loading' and the findings on leaseholder/permitted visitor/loading/delivering rights of way superseding parking signs, are persuasive on the lower courts.
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.’
Below is a copy of the cark park layout supplied with my tenancy agreement, as well as an image of the front of my tenancy agreement that illustrates my flat number, which proves that the bay I was parked in was my designated space. Please note that there is no mention of requiring a permit on this cark park layout, nor is there any mention of requiring a permit in the tenancy agreement itself (a copy can be supplied upon request).

4. 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.

Yours faithfully,

Coupon-mad

I think the signage in the car park was pretty clear, so I don't know if it would be that applicable (correct me if I am wrong). The signs also did not state whether the windscreen was front or rear.

Never leave out 'unclear signage'.

AnnaHetherington

I received a letter from Euro Car Park advising I was parking in their car park and have not displayed the appropriate ticket. I paid £0.70 which only covers 30 minutes as opposed to the 70 minutes I used the car park for. I tried to appeal to them saying that I was walking in the park with my dog and toddler and was unable to get back on time due to pregnancy paid (I provided a confirmation of pregnancy and the ticket). They refused my claim and said I have to pay £60 within 14 days (June 30), or £100 after 14 days or if my claim to POPLA is declined. 
Is this a strong claim enough for POPLA if I also mention that my husband has been made redundant due to COVID (can provide evidence)?
Thanks so much for people's advice. 

nosferatu1001

Welcome!
Please go and read the newbies thread, and, if necessary, create your own thread. Delete this post, as this is not your thread, and it is not yours to post quesitons about your issue on. 

D_P_Dance

Most of the parking photos are rubbish, but I like the old colonial house.  What is a banana bunke?