HELP! Residential Parking Appeal

[PP92]

Hello,

Would like some advice regarding an appeal to POPLA regarding a PCN from PPS. The situation was that the car was parked in a careers bay due to the reason of the visit for approx of 30 minutes. The vehicle normally used for the care assistant job role was off road (that car had a permit) therefore the vehicle used on that day did not have a permit. However the council were advised that another car would be used without a permit in which they advised this would be okay on a short term basis. On the issue of the PCN, PPS were contacted and told the council were aware of the vehicle being used without a permit and the response was that PPS should have been told. The signs state if no permit then visitor permits are valid for 4 hours park only in the allocated bays, however, there are no visitor bays clearly marked within that car park. The signs also do not have a contact telephone number to make them aware the vehicle had no permit and the signs are also not at eye level. On advice from MoneySavingExpert.com waited for the first notice of keeper letter to arrive before the first appeal was sent to PPS. A appeal to PPS was used from http://forums.moneysavingexpert.com which PPS has now rejected and given a POPLA code for further appeal.

Really appreciate any help given in aid of the POPLA appeal. If needed the appeal letter and photos of the parking area and signs can be posted.

Many Thanks

PP92

[mystery1]

Re: HELP! Residential Parking Appeal

Post them up :okay:

I have another popla and 2 court ones to do first though but should manage this weekend.

M1

[PP92]

Re: HELP! Residential Parking Appeal

[PP92]

Re: HELP! Residential Parking Appeal

This is the letter they sent in reply to the appeal;

11 December 2014

Dear Sir/Madam,
Re: Parking Charge Notice
Issue date: 07/10/2014


Further to your email of appeal received on 28/11/2014 regarding the above parking charge, I have now
had the opportunity to review this case and my findings are below.


Parking at this site is only for vehicles that are parked in accordance with the site instructions, as detailed
on signage on site. This signage is clear, in excess of industry standards and clearly details any charges
that may be imposed should these restrictions be contravened, please see the enclosed photographic
evidence which confirms this. The amount sought as the parking charge notice is a term of the contract.
Please note that by parking in our car park the driver accepts the terms and conditions of parking
as advertised on our signage which forms a contract, and it is not possible to cancel this contract
once they have parked and left the vehicle. We would advise the driver to park elsewhere if they
are not willing to accept and comply the conditions of parking. We can confirm that we have full
authorisation and legal standing to manage, control and enforce, as Principal, at this site by way
of a contract with the land owners.


Vehicles must be parked only in designated areas, with a valid permit clearly on display on the dashboard
of the vehicle. There was not a permit displayed in this vehicle and it was parked in an 'Emergency
Vehicles Only' bay. I therefore uphold our operatives decision to issue this parking charge notice.
The Parking Charge Notices that we issue represent liquidated and ascertained damages. When a
motorist parks in breach of the Terms and Conditions of Parking, we incur a loss because incorrect
parking prevents the efficient management of the car park. The amount of the Parking Charge Notice
represents a genuine pre-estimate of the additional expense incurred by us as a result of this. It will be
seen that the charge of £100 reduced to £60 if paid within 14 days is within the prescribed guidelines
issued by the British Parking Association, our governing body. The charge is in accordance with the
Protection of Freedoms Act 2012. The genuine pre-estimation of loss refers to costs that we estimated, at
the time of issuing the PCN that may follow from the initial loss for this individual charge only. For further
information, regarding genuine pre-estimation of loss, please visit our website www.pps.uk.com on Home
Page, Newsfeed, for recent adjudications by POPLA in our favour on this point.


We are therefore unable to cancel the Parking Charge Notice as it was issued correctly. Please forward a
payment of £100 to reach us by 08/01/2015 in order to avoid further proceedings; incurring additional costs. Please be aware that when appealing any further the charge will not be placed on hold.


Payments can be made by cheque or postal order - payable to PPS Ltd, or on our website -
www.pps.uk.com


If your appeal is unsuccessful, you have the opportunity to go to an Independent Appeals Service known
as POPLA (Parking on Private Land Appeals).


Please note that should POPLA’s decision not go in your favour you will be required to pay the
full amount of £100.


If you appeal to POPLA then please use the accompanying form, or if your appeal has been submitted
electronically please visit www.popla.org.uk for further information. However, if your appeal is dismissed
by POPLA, we will use their adjudication in future Court proceedings which may commence without delay
and further costs may be added.


If you choose to do nothing, we will seek to recover the monies owed to us via our debt recovery
procedures and may proceed with Court action against you.


Further to your comments regarding our 'Notice' I can confirm that
NB: If, as the keeper of the vehicle, you do not give the details about the driver or hirer, or if the driver or
hirer refuses to acknowledge their liability, you may be liable to pay any unpaid charges in accordance
with the Protection of Freedoms Act 2012.


Yours sincerely.

[mystery1]

Re: HELP! Residential Parking Appeal

Need to be logged in to see those.

M1

[PP92]

Re: HELP! Residential Parking Appeal

It is not allowing the photos to be seen tried logging in and still not working :/

[mystery1]

Re: HELP! Residential Parking Appeal

https://www.youtube.com/watch?v=BjnPAhAdxZQ

M1

[PP92]

Re: HELP! Residential Parking Appeal

[mystery1]

Re: HELP! Residential Parking Appeal

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. Premier parking solutions (PPS) do not hold sufficient interest in the land to offer a motorist a contract to park. They have no locus standi.


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


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


1.The charges are penalties.


The charges are represented as a Trespass. Whilst it is disputed that a contract was entered into (see point 2) 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"


£100 is clearly not proportionate to a stay in a car park in which the vehicle was entitled to be in but could not park in an appropriate bay. Neither is it commercially justified because it would make no sense. You either trespass or you don't. If you allow trespass when it suits you it's not trespass. As this is clearly a trespass scenario, although not described as such, the charges in law need to be a genuine pre estimate of loss. When a care assistant vehicle is allowed access but a substitute vehicle is used due to mechanical failure then there can be no loss


I require PPS to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. PPS 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 imposes no parking fee for the area in question, there is only the limited loss to whoever it is due. 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.''


In Parking Eye v Beavis it was found that the charges were penalties although specific to that car park they were commercially Justifiable which clearly can't be in the case or trespass.






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 £100 in a free car park - and therefore I contend the elements of a contract were conspicuous by their absence. If it is dark it is not good enough for signs just to be present, they must be able to be seen.




3.. Contract with landowner - no locus standi
PPS do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that PPS 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 PPS 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 PPS 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/71a4eb1b5de2...essKeyId=4CB8F 2392A09CF228A46&disposition=0&alloworigin=1


In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'


I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. PPS cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.


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.


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 inParkingEye 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.




M1

[PP92]

Re: HELP! Residential Parking Appeal

Thank you soo much really appreciate it! I just want to ask one more question when sending the POPLA appeal do you write as the keeper or as the driver?

Thanks again

PP92

[mystery1]

Re: HELP! Residential Parking Appeal

Keeper.

M1

[PP92]

Re: HELP! Residential Parking Appeal

Hello I was wondering if you could help me regarding this same POPLA Appeal.

After the POPLA Appeal was processed we received an email to state that we had won the appeal (Sent on the 18th Feb).

After no other correspondence today (26/03) received an email stating that there was a admin error within the case, therefore, there is to be a rehearing regarding the case on the 22/04. IS this correct?

Kind Regards

PP92

[mystery1]

Re: HELP! Residential Parking Appeal

Wait a month for a rehearing ? hmm...

I'd be asking why a rehearing & why a month for the rehearing.

Did you get the operator evidence before the original hearing ?

M1

[PP92]

Re: HELP! Residential Parking Appeal

Yes we received 2 emails containing the evidence that the operator would be presenting for the original hearing. Then received the email to say Poplar had agreed with our appeal and case was closed. Then today this email came through to say an administrative error was made and that the full evidence was not taken into consideration on the original hearing so a re hearing has been arranged for 22nd april.

[mystery1]

Re: HELP! Residential Parking Appeal

All you can do is ask popla to explain why and explain the delay.

M1