Popla Appeal- UKPC Quoting Beavis in rejection Letter - Won

[mrspitfire]

In April a ticket was placed on my car in a car park for failing to display a pay & display ticket (COST £0). & want £50 or £90 if I lose at Popla

I sent off the usual appeal which was rejected, but they have quoted Beavis saying

"The court of appeal unabiguoiusly clarified the common law's position on both the nature and enforcability of parking charges. It is now clear thay a parking charge having the predominant purpose or intention to deter is 'not' sufficient in itself to invalidate [the charge]' The Principle test that should be used is whether the sum charge is 'extravagant and unconscionable'. In the case it was found that the parking charge was not extravagant and unconscionable and thus fully enforcable under the rules about contractual penalties. The Court made reference to indirect losses that parking contraventions can cause to operators, the need for large charges to deter breaches, the benefit to the community that such deterrence can create and the intention of Parliament for such charges to be enforceable. This ruling now represents the most authorative judgement in the area of parking law and must be strictly adheared to, Following the ruling in Beavis, it is without doubt that your parking charge is wholly valid and fully enforcable"

What do i need to put in my Popla appeal to counter this ?, or will i need to rely on the other points in my initial appeal namely: (They did not mention Points C & D) in their rejection letter)

a). The sum does not represent a genuine pre-estimate of loss, nor is it a core price term. It is a disguised penalty and not commercially justified.
b). As keeper I believe that the signs were not seen, the wording is ambiguous and the predominant purpose of your business model is intended to be a deterrent.
c). There is no evidence that you have any proprietary interest in the land.
d). Your 'Notice' fails to comply with the POFA 2012 and breaches various consumer contract/unfair terms Regulations.
e). There was no consideration nor acceptance flowing from both parties and any contract with myself, or the driver, is denied.
f). This is not a 'parking ticket' - it is an unsolicited invoice with as much merit as the publicly-derided £100 taken unlawfully from customers by a dingy Blackpool Hotel.
Hope someone can help. I got the rejection yesterday and on checking the Popla number I only have to June 4th to get appeal in.

[mystery1]

Re: Popla Appeal- UKPC Quoting Beavis in rejection Letter

PoFA is far and away the best argument. If they don't know who was driving and have failed the keeper liability requiments you'll win @ popla (unlike IAS who assume the RK is the driver).

You can argue Beavis only applies when they pay a grand a week etc but in light of Beavis it may fail.

M1

[mrspitfire]

Re: Popla Appeal- UKPC Quoting Beavis in rejection Letter

PoFA is far and away the best argument. If they don't know who was driving and have failed the keeper liability requiments you'll win @ popla (unlike IAS who assume the RK is the driver). You can argue Beavis only applies when they pay a grand a week etc but in light of Beavis it may fail. M1

how would i prove they have failed the keeper liability requirements ?

[mystery1]

Re: Popla Appeal- UKPC Quoting Beavis in rejection Letter

d). Your 'Notice' fails to comply with the POFA 2012 and breaches various consumer contract/unfair terms Regulations.

how would i prove they have failed the keeper liability requirements ?

You should have the notices and can check it against the statutory requirements of PoFA.

Post the notices up without your details on them.

M1

[mrspitfire]

Re: Popla Appeal- UKPC Quoting Beavis in rejection Letter

You should have the notices and can check it against the statutory requirements of PoFA.

Post the notices up without your details on them.

M1

Notice to Keeper attached.

[mystery1]

Re: Popla Appeal- UKPC Quoting Beavis in rejection Letter

Was the date after 7th ?

M1

[mrspitfire]

Re: Popla Appeal- UKPC Quoting Beavis in rejection Letter

Was the date after 7th ?

M1

checking back ticket date was 22/03/2015, NTK was dated 21/04/2015 & Appeal rejection letter was dated 07/05/2015

[mystery1]

Re: Popla Appeal- UKPC Quoting Beavis in rejection Letter

I wish to appeal this parking charge on the following grounds.




1. The charges are penalties and not a contractual charge, breach of contract or trespass. They are not a genuine pre estimate of loss either.




2. In order to form a contract the signs need to be clear so that they must be seen by an average person. They were not. There was no breach of contract.




3. UKPC do not hold sufficient interest in the land to offer a motorist a contract to park. They have no locus standi.




4. UKPC have failed to adhere to the BPA code of practice.




5. Unreliable, unsynchronised and non-compliant ANPR system.


6. Keeper liability.




1.The charges are penalties.




The charges are represented as a failure to pay which is disputed. The driver on the day had difficulty in getting in and out of the car park due to traffic. According to the BPA code "If the parking charge that the driver is being asked to pay is for a act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance"




£90 is clearly not proportionate to a stay in a car park in which the vehicle was allowed to park for a small hourly sum. Neither is it commercially justified because it would make no sense and in any event in was only ruled so in Parking Eye v Beavis in a car park where the operator paid £1000 per week, a case which in any event is being appealed to the supreme court. It is also noted that the judge in Beavis did rule it was a penalty although in that particular car park it was commercially justified due to the £1000 per week paid by the operator. £90 is clearly a penalty. The £90 is not a genuine pre estimate of loss and is extravagant and unconscionable. It is a penalty. It is not an attempt to claim liquidated damages which should be a genuine pre estimate of loss. £90 cannot be so as the figures quoted include business costs.




I require UKPC to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. UKPC cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.




According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner allows free parking for shoppers and several hundred pounds were spent then there is no loss. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''




It was held in Parking Eye v Cargius that Beavis does not apply in a paid car park and that the charge is a penalty.








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




I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £90 in a carpark where they could have paid a small sum. It was not a genuine attempt to contract for unlimited parking in return for £90.




As the PCN had no VAT content to it, it cannot be for a service. It must therefore be a penalty.








3.. Contract with landowner - no locus standi




UKPC do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that UKPC has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Parking eye to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.








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.








So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between Parking eye and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): http://nebula.wsimg.com/0ce354ec6697...essKeyId=4CB8F 2392A09CF228A46&disposition=0&alloworigin=1






I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.








It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."








The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."








In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.








4. Failure to adhere to the BPA code of practice.




The signs do not meet the minimum requirements in part 18. 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"




5. ANPR ACCURACY




This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted,calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images.This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.








So, in addition to showing their maintenance records, I require the Operator in this case to show evidence to rebut this point: I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system and I put this Operator to strict proof to the contrary.




6. Keeper liability.


The protection of freedoms act 2012 schedule 4 allows the opportunity for parking companies liable for the actions of the driver but only if full compliance is achieved. In the case of an ANPR situation compliance with section 9 is required.


Right to claim unpaid parking charges from keeper of vehicle




4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met ....


6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—




(b)has given a notice to keeper in accordance with paragraph 9.




9(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—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(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;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(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;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(i)specify the date on which the notice is sent (where it is sent by post) or given (in any other case).
(3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).
(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(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.
(7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.
(8)In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—
(a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and
(b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.












The notice to keeper does not specify a period of parking. The notice merely indicates a time of entry in to the car park and an exit time from the car park. The BPA code of practice makes reference to the fact that entry is not parking and dictates a grace period must be allowed partly for this very reason. As the keeper is not the person who was driving the keeper cannot know what the period of parking is and the legislation dictates it must be specified, presumably for that very reason. In Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998) it was held that the specified information required to be provided by legislation should indeed be accurate and that the failure made the relevant notice invalid. It was also the deciding factor in Parking Eye v Mrs X Case No: 3JD08399 IN THE ALTRINCHAM COUNTY COURT.
http://nebula.wsimg.com/c289944f81b4...&alloworigin=1


Sections E & F has not been complied with at all. Other sections are not totally complied with either. The keeper is not invited to pay.






M1

[mrspitfire]

Re: Popla Appeal- UKPC Quoting Beavis in rejection Letter

I wish to appeal this parking charge on the following grounds. 1. The charges are penalties and not a contractual charge, breach of contract or trespass. They are not a genuine pre estimate of loss either. 2. In order to form a contract the signs need to be clear so that they must be seen by an average person. They were not. There was no breach of contract. 3. UKPC do not hold sufficient interest in the land to offer a motorist a contract to park. They have no locus standi. 4. UKPC have failed to adhere to the BPA code of practice. 5. Unreliable, unsynchronised and non-compliant ANPR system. 6. Keeper liability. 1.The charges are penalties. The charges are represented as a failure to pay which is disputed. The driver on the day had difficulty in getting in and out of the car park due to traffic. According to the BPA code "If the parking charge that the driver is being asked to pay is for a act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance" £90 is clearly not proportionate to a stay in a car park in which the vehicle was allowed to park for a small hourly sum. Neither is it commercially justified because it would make no sense and in any event in was only ruled so in Parking Eye v Beavis in a car park where the operator paid £1000 per week, a case which in any event is being appealed to the supreme court. It is also noted that the judge in Beavis did rule it was a penalty although in that particular car park it was commercially justified due to the £1000 per week paid by the operator. £90 is clearly a penalty. The £90 is not a genuine pre estimate of loss and is extravagant and unconscionable. It is a penalty. It is not an attempt to claim liquidated damages which should be a genuine pre estimate of loss. £90 cannot be so as the figures quoted include business costs. I require UKPC to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. UKPC cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same. According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner allows free parking for shoppers and several hundred pounds were spent then there is no loss. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.'' It was held in Parking Eye v Cargius that Beavis does not apply in a paid car park and that the charge is a penalty. 2. Unclear and non-compliant signage, forming no contract with drivers. I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £90 in a carpark where they could have paid a small sum. It was not a genuine attempt to contract for unlimited parking in return for £90. As the PCN had no VAT content to it, it cannot be for a service. It must therefore be a penalty. 3.. Contract with landowner - no locus standi UKPC do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that UKPC has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Parking eye to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers. 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. So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between Parking eye and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): http://nebula.wsimg.com/0ce354ec6697...essKeyId=4CB8F 2392A09CF228A46&disposition=0&alloworigin=1 I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above. 4. Failure to adhere to the BPA code of practice. The signs do not meet the minimum requirements in part 18. 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" 5. ANPR ACCURACY This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted,calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images.This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. So, in addition to showing their maintenance records, I require the Operator in this case to show evidence to rebut this point: I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system and I put this Operator to strict proof to the contrary. 6. Keeper liability. The protection of freedoms act 2012 schedule 4 allows the opportunity for parking companies liable for the actions of the driver but only if full compliance is achieved. In the case of an ANPR situation compliance with section 9 is required. Right to claim unpaid parking charges from keeper of vehicle 4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2)The right under this paragraph applies only if— (a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met .... 6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (b)has given a notice to keeper in accordance with paragraph 9. 9(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— (a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates; (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; (c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable; (d)specify the total amount of those parking charges that are unpaid, as at a time which is— (i)specified in the notice; and (ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4)); (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; (g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available; (h)identify the creditor and specify how and to whom payment or notification to the creditor may be made; (i)specify the date on which the notice is sent (where it is sent by post) or given (in any other case). (3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking). (4)The notice must be given by— (a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or (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. (7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10. (8)In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes— (a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and (b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration. The notice to keeper does not specify a period of parking. The notice merely indicates a time of entry in to the car park and an exit time from the car park. The BPA code of practice makes reference to the fact that entry is not parking and dictates a grace period must be allowed partly for this very reason. As the keeper is not the person who was driving the keeper cannot know what the period of parking is and the legislation dictates it must be specified, presumably for that very reason. In Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998) it was held that the specified information required to be provided by legislation should indeed be accurate and that the failure made the relevant notice invalid. It was also the deciding factor in Parking Eye v Mrs X Case No: 3JD08399 IN THE ALTRINCHAM COUNTY COURT. http://nebula.wsimg.com/c289944f81b4...&alloworigin=1 Sections E & F has not been complied with at all. Other sections are not totally complied with either. The keeper is not invited to pay. M1

Thanks M1, Only 1 more question!, There was no ANPR in this car park...So should I just cut out any anpr references ? or is there anything to replace it ?

[mystery1]

Re: Popla Appeal- UKPC Quoting Beavis in rejection Letter

Silly me. Yes just delete it. Glad to see someone read what i post though

M1

[mrspitfire]

Re: Popla Appeal- UKPC Quoting Beavis in rejection Letter

Hi Just got UKPC's "evidence" through from Popla.



On xx/xx/xxxx our warden issued a parking charge to vehicle registration xxxxxxx at xxxxxxxx. The parking charge was issued because the vehicle was parked in a pay and display space without displaying a valid pay & display ticket.
The Parking Charge amount was £90.00, reduced to £50.00 if payment was received within 14 days.
An appeal was received from Mr x on xxxxxx, to which the appeals department investigated.
There are sufficient signs warning drivers that should they choose to park without displaying a valid pay &
display ticket they may become liable to receive a Parking Charge. Mr x's vehicle was parked without
displaying a valid pay & display ticket and consequently the Parking Charge was correctly issued.
A letter was sent to Mr x informing them of our decision on xxxxxx
UK Parking Control Ltd does not issue or collect “Penalty Charges”, “fines” or “Excess Charges”. Such things are
only relevant to the on-street or civil enforcement area and enforced by police/traffic wardens or council civil
enforcement officers under the Traffic Management Act 2004 or the Road Traffic Acts. This legislation is not
applicable to private land. We can confirm, however, that UKPC has the authority to issue and enforce Parking
Charge Notices, for breach of contract in accordance with the Protection of Freedoms Act 2012.
Further evidence that parking charges cannot be viewed as penalties, can be found in Mayhook v National Car
Parks and Fuller [2012], Combined Parking Solutions v Mr Stephen James Thomas [2008], Combined Parking
Solutions v De Brunner [2007] and in a High Court / Court of Appeal case of (ParkingEye v Somerfield Stores
[2011]).
In the recent case of ParkingEye Ltd v Beavis [2015] EWCA Civ 402, the Court of Appeal unambiguously clarified
the common law’s position on both the nature and enforceability of parking charges.
It is now clear that a parking charge having the predominant purpose or intention to deter is ‘not sufficient in
itself to invalidate [the charge]’. The principle test that should be used is whether the sum charged is
‘extravagant and unconscionable’ (see para 51). In the case, it was found that the parking charge was not
extravagant and unconscionable and thus fully enforceable under the rules about contractual penalties (see
para 31). This ruling now represents the most authoritative judgement in the area of parking law and must be
strictly adhered to.
In undertaking this ‘principle test’, an ‘excessive concentration’ on the difference between the amount payable
under the charge and the measure of actual loss sustained has been strongly ‘deprecated’ (see para 18). The
Court of Appeal understood that in certain circumstances parking operators may not suffer any ‘direct financial
loss’ from parking contraventions. However, even in these circumstances, the Court recognised that such
contraventions can cause an ‘indirect loss’ to parking operators. For example, the inability of an operator to
prevent breaches of parking restrictions would likely result in the loss of its service contract with the landowner
(see para 25).
Though the Court recognised that it is theoretically possible to charge motorists more ‘modest amounts’, it
would be ‘wholly uneconomic to enforce such charges by taking legal proceedings against them’ (see para 25).
Further, the Court appreciated that charges must be large enough to act as a ‘deterrent’ and large enough to
‘justify collection’ (see para 30).
Despite indications that a charge is extravagant and unconscionable, other factors may be present which ‘rob’
the charge of this character (see para 27). In prior cases, it has been the case that only commercial factors or
justifications have been considered. However, in Beavis, the Court of Appeal stated that such charges can be
justified using other considerations, such as ‘social’ factors, due to the fluidity of a ‘rule grounded in public
policy’ (see para 27). Relevant public policy factors were highlighted by the Court when it stated that deterrent
charges can be beneficial to drivers, shopkeepers and ‘the community as a whole’ (see paras 38 and 45). The
Court also found that Parliament’s enactment of Schedule 4 of the Protection of Freedoms Act 2012 strongly
supports the conclusion that the legislature considered it to be ‘in the public interest’ that parking charges be
valid and enforceable (see para 28).
Following the test of extravagance and unconscionability, as well as taking into account the applicable public
policy factors, it is without doubt that your parking charge is wholly valid and fully enforceable.
All of our signage is fully compliant with the guidelines set out within the BPA Code of Practice and we reject the
notion that it is in any way unclear or ambiguous. As per Appendix F of the BPA Code of Practice, the
requirement for there to be Entrance Signs on site comes into force on 1st October 2015. We feel there are
sufficient signs on site to inform drivers of the terms and conditions of parking.
The Parking Charges issued by UK Parking Control Limited (“UKPC”) are levied on the basis of a contract with
the driver, as detailed on the signage displayed in the car parks. The signage sets out the terms and conditions
of parking under which a driver is authorised to park, be that by pre-payment of a parking tariff, or by parking
only for a maximum period of time, or by adhering to other terms and conditions (such as being parked within
a marked bay), and that a Parking Charge will be payable if the conditions of parking are not met by the driver.
We ensure that signage containing the terms and conditions of parking is ample, clear, visible and in line with
the British Parking Association’s Code of Practice to ensure the driver is bound by them when they enter and
remain on site, so that all users of the car park are obliged to follow these terms and conditions of parking. It is
settled law that a driver is deemed to have accepted the terms and conditions of parking by the act of parking
in the car park.
A key legal precedent for England and Wales was set in 1996 in the case of Arthur v Anker. In that case the
judge ruled that Mr Arthur parked in breach of the terms and conditions prominently displayed at the car park.
He was liable to pay the charges levied.
A number of other cases, such as Vine v London Borough of Waltham Forest [2000], refers to the creation of a
contract with the driver. This is again reiterated in Section 7.1 of the Department of Transport’s guidance on
Section 56 and Schedule 4 of the Protection of Freedoms Act 2012. This refers to the fact that if the terms and
conditions of parking are sufficient it will be considered that the driver has entered into a contract to park on the
land. Also see Combined Parking Solutions v Dorrington (2012), Combined Parking Solutions v De Brunner
(2007), Combined Parking Solutions v Blackburn (2007) and Combined Parking Solutions v Rees (2007).
Paragraph 9(2)(b) of schedule 4 of the Protection of Freedoms Act 2012, states that we must inform the
registered keeper that the driver of a vehicle is required to pay the parking charge in full. It also notes that as
we do not know the driver’s name or current postal address, the registered keeper, if they were not the driver at
the time, should inform the operator (i.e. us) of the name and current address of the driver and pass the notice
to them.
The Act also warns that if, at the end of the period of 28 days (beginning with the day after the Parking Charge
is sent), the parking charge has not been paid in full and the operator does not know both the name and
current address of the driver, the operator has the right to recover any unpaid part of the parking charge from
the registered keeper. This warning is given under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms
Act 2012 and is subject to us complying with the applicable conditions under Schedule 4 of that Act (which we
consider we do comply with, to the letter).


They also included copies of the ticket, NTK, my appeal letter & their rejection and photos of my car and the site signs (amusingly most of these were upside down!).

How should I challenge this?

[mystery1]

Re: Popla Appeal- UKPC Quoting Beavis in rejection Letter

Well you could shout "bullshit" and counter with para 13 http://nebula.wsimg.com/de2566ded6f0...&alloworigin=1 however that'll only delay matters and we've already mentioned Cargius.

They are going to lose no matter what. A Notice to keeper is required and cannot be changed once the deadline has passed. Theirs is bogroll.

I would just await the winning verdict.

You will win.

M1

[mrspitfire]

Re: Popla Appeal- UKPC Quoting Beavis in rejection Letter

Great thanks, will post the outcome.............

[mrspitfire]

Re: Popla Appeal- UKPC Quoting Beavis in rejection Letter

Great thanks, will post the outcome.............

WooHoo, Won at Popla, Can't thank you enough M1, you are a legend!!


Reasons for the Assessor’s Determination
At xxxxx on the xxxxxxx, the operative observed a vehicle with registration mark, xxxxx parked at xxxxxxxxx. A parking charge notice was issued for parking without clearly displaying a valid pay and display ticket.
The Operator’s case is that there are sufficient signs warning drivers that should they choose to park without displaying a valid pay and display ticket they may become liable to receive a parking charge. As the motorist was parked at the site without displaying a valid pay and display ticket, the motorist had failed to park in accordance with the terms and conditions.
The Appellant’s case is that:
a) The charges are penalties and they do not represent a genuine pre estimate of loss.
b) The signage at the site was not clear and a valid contract was therefore not formed with the driver.
c) The Operator does not hold sufficient interest in the land to offer the motorist a contract to park.
d) The Operator has failed to adhere to the BPA Code of Practice.
e) Keeper liability has not been established.
Considering carefully all the evidence before me, the Appellant has stated that the Operator does not have sufficient interest in the land to offer the motorist a contract to park and the Appellant is therefore questioning the authority of the Operator to enforce restrictions at the site. The onus is then on the Operator to show that they have the authority from the landowner to issue parking charge notices to vehicles parked in breach of the terms and conditions. It is for the Operator to address the issues raised by the Appellant and in this case, the Operator has failed to provide a copy of the contract in place or a signed witness statement which grants them the authority to enforce restrictions at the site. I consequently have no evidence before me to refute the Appellant’s submission that the Operator does not have the authority to issue parking charge notices to vehicles parked in contravention of the terms and conditions. It does not fall to me to decide any other issues raised by the Appellant.

Accordingly, this appeal must be allowed.
xxxxxxxxx
Assessor