Secure Parking Ltd Inadequate Signage - Popla Appeal
I received a fine a couple of weeks ago from Secure Parking Ltd at a private apartment building in Leicester. The fine was for overstaying at the property. We had no idea when or how to pay the fine when we arrived at the property due to a lack of adequate signage and poorly lit parking bays. My cousin's husband lives on the premises, but he was also confused about when and how we had to pay for the parking.
When we were about to leave, we found the sign high up on a wall (2.1 meters high), which we did not see when we entered the property. However, it was still too difficult to read, so we did not know when we had to pay. We found the parking lot on the RingGo app (as we previously used this app at different locations) and paid for the time we had stayed at the premises.
The appeal I sent to Secure Parking Ltd was rejected. I also tried to contact the landlord through the tenant of the property, but they refused to provide his/her email address or phone number. I am planning to submit a Popla Appeal today. Here is my template below:
I am the registered Keeper of the above vehicle and I am appealing against the above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.
1. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.
2. The signage at the car park was not compliant with the British Parking Association standards and there was no valid contract between the parking company and the driver.
3. The amount demanded is not a Genuine Pre-estimate of loss.
Here are the detailed appeal points:
1. No valid contract with landowner
It is widely known that some contracts between landowner and parking company have authority “limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require the parking company to produce a copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.
It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory
is, indeed, authorised to act on behalf of the landowner, has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company
2. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver
Following receipt of the charge, I have personally visited the site in question. I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice Appendix B. I require the operator to provide photographic evidence that proves otherwise.
As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.
The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site or mobile app.
The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
3. The amount demanded is not a Genuine Pre-estimate of loss
The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowiing from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre.
The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time. Note:- the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and can not include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.
For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.
Equally, as the claim is being made for estimated losses at the time of the alleged contravention, then any costs included by the Operator that relate to accumulated amounts post that date are obviously invalid. Should such cost heads be included in the claim, as well as any profit element, then POPLA must reject the charge.
It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.
This concludes my appeal.
Some guidance would be greatly appreciated.
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