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sarahlhug82
Thanks all so much!

How's this? Do I need to put in the reasons we were late back to the car? e.g. we were changing my little boy? Also will the Beavis case mean that the pre-estimate of loss argument is out the window? I believe this to be our strongest argument... thanks in advance.

POPLA REF XXXXXXXXXXXXXXXX

CAR REG XXXXXXXXXXXXXXXX

As the registered keeper of the car mentioned above I would like to appeal and have cancelled the parking charge notice issued by Local Parking Security Ltd for a number of reasons outlined below:

1. Local Parking Security Ltd has no contractual authority
2. The charge is punitive and not a genuine pre-estimate of loss
3. Keeper Liability Requirements and the Protection of Freedom Act
4. No Contract was entered into between Local Parking Security Ltd and the Driver or Registered keeper
5. Unfair terms of contract
6. Without a contract
7. Non BPA compliant signage


1. Local Parking Security Ltd has no contractual authority

In the notices they have sent me Local Parking Security Ltd have not shown any evidence that they have any proprietary interest in the car park/land in question. Also they have not provided me with any evidence that they are lawfully entitled to demand money from either driver or keeper. It would seem that they do not own or have any interest or assignment of title in the land. I can only assume instead they are agents for the owner/legal occupier instead. I submit therefore that they do not have the necessary legal right to make the charge for a vehicle using the car park. I require Local Parking Security Ltd to provide a full, up-to date and signed/dated contract with the landowner (a statement saying someone has seen the contract is not enough). The contract needs to state that Local Parking Security Ltd are entitled to pursue matters such as these through the issue of Excess Charge Notices and in the courts in their own name. I clarify that this should be an actual copy and not just a document that claims a contract/agreement exists.

2. The charge is punitive and not a genuine pre-estimate of loss

Judging by the wording of the parking charge notice this is clearly an attempt to enforce this charge under paragraph B 19.5 of the BPA Code of Practice in which it states that this must be a genuine pre-estimate of the loss that may have incurred. Local Parking Security Ltd claim that my car was in the car park for 19 minutes over the paid time, whilst the tariff to park for the day is £2.50. They are asking for a charge of £85 for this penalty. This alone is far more than the cost to the landowner could have loss for the time my car was said to have parked there. The charge is clearly punitive and disproportionate to any alleged breach of contract.

Furthermore as the operator is clearly seeking to impose a penalty, it is their sole responsibility to provide a full breakdown as proof of the pre-estimated loss of £85. As of this point they have made no effort to provide me with a breakdown of the costs they allegedly incurred. To justify the charge of £85, I require Local Parking Security Ltd to back up their decision by providing POPLA with a full and detailed financial breakdown of the pre-estimated costs they have suffered as a result of the charge in question. I would like to add that normal costs of running their business (their day to day costs like provision of parking, enforcement, signage, salaries, rent etc) must not be included in the breakdown as Local Parking Security Ltd would need to pay these irrespective of this alleged charge. Parking enforcement costs cannot possibly represent any loss resulting from an alleged breach of contract, as these costs would need to be paid whether the breach had happened or not.

In summary not only is the £85 charge completely disproportionate meaning that it is punitive and is breaking the Unfair Contract Terms Act 1997, but there can be no loss shown at all as no pre-estimate charge has been put together making the charge unenforceable against myself or the driver.

3. Keeper Liability Requirements and the Protection of Freedom Act

The Operator’s Notice to Keeper ("NTK") did not comply with Schedule 4 of the Protection of Freedoms Act 2012 ("POFA")

In order to be able to be able to invoke Keeper liability, the Operator’s NTK had to comply with the strict requirements of Schedule 4 of POFA; I set out below a non-exhaustive list of reasons why it failed to do so.

• Contrary to the requirement of Schedule 4, Paragraph 8 (2) (a), the NTK did not specify a period of parking to which the notice related; it merely stated a discrete date and time of issue.
• Contrary to the requirement of Schedule 4, Paragraph 8 (2) (b), the NTK did not 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.
• Contrary to the requirement of Schedule 4, Paragraph 8 (2) (e), the NTK did not contain a statement that the creditor did not know both the name of the driver and a current address for service for the driver, inviting 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.
• Contrary to the requirement of Schedule 4, Paragraph 8 (2) (f), the NTK did not contain a statement warning 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 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 Schedule 4 of POFA are met) have the right to recover from the keeper so much of that amount as remains unpaid.
• Contrary to the requirement of Schedule 4, Paragraph 8 (2) (h), the NTK did not identify the creditor and specify how and to whom payment or notification to the creditor may be made.

Consequently, the Operator has forfeited any right to utilise POFA to hold the vehicle's keeper liable for this charge.


4. No Contract was entered into between LPS Ltd and the Driver or Registered keeper

Although I was not the driver I would like to point out that the signs at the car park in question are unsuitable to inform drivers of the full terms and conditions of what they are entering into by physically entering the car park. LPS Ltd clearly relies on contract law, but does not do enough to make clear what the terms and conditions of the contract are, making it far too easy for people to unwittingly fall outside the terms of contract. It is not appropriate for a car park such as this to have such a limited amount of signs and rely on drivers to look carefully for where and how the terms are displayed.
It is surely the responsibility of LPS Ltd to make the terms of their contract far clearer so that drivers have no doubt whatsoever of any supposed contract they may be entering into. I require LPS Ltd to provide evidence as to how clear the terms and conditions are and consider if the methods used are clear enough for this type of car park.

Furthermore a contract can only be considered to be entered into if enough evidence exists that it actually happened. For a contract to have been entered into the driver would have had to get out of the car, read the signs, fully interpret and understand them and then agree to them. None of which ever actually happened.

I request that LPS Ltd provide concrete evidence that a contract existed between themselves and the driver on the day in question, which meets all the legal requirements of forming a contract. They should include specific things including, agreement from both parties, clarity and certainty of terms etc. If they are not met then the contract would be deemed “unfair” under the Unfair Terms in Consumer Contract Regulations 1999.

5. Unfair terms of contract

Although there is no contract between LPS Ltd and the driver (or myself), if there were then I would ask POPLA to consider this charge to be unfair and non-binding based on the Unfair Terms in Consumer Contracts Regulations 1999. There is a clear list of terms that apply. I have highlighted the following specifically as I believe they apply directly to this case:

2. (1) (e) Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.

5. (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

5. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

The Unfair Terms in Consumer Contracts Regulations 1999 was brought in to protect consumers from unfair contracts such as the one LPS Ltd are suggesting. A company such as LPS Ltd needs to actually prove that the driver saw, read and accepted the terms, which is impossible because this did not actually happen.

6. Without a contract

Without a contract it would seem the most appropriate offence would be a civil trespass. If this were the case, the appropriate award LPS Ltd could seek would be damages. As there was no damage to car park there was no loss to them at all and therefore should be no charge.

7. Non BPA compliant signage

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

The Operator needs to show evidence and signage map/photos on this point - specifically showing the height and lighting 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.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

I respectfully request that this parking charge notice appeal be allowed and await your decision.



sarahlhug82
can anyone offer any feedback please?
Albert Ross
QUOTE
Furthermore as the operator is clearly seeking to impose a penalty...

is that a contractual charge?
sarahlhug82
Hiya

Is it best to appeal to POPLA online or by recorded delivery post? I have had advice to do it via post... Also any feedback on the above would be really appreciated

Many thanks!
Lynnzer
QUOTE (sarahlhug82 @ Wed, 22 Jul 2015 - 21:10) *
Hiya

Is it best to appeal to POPLA online or by recorded delivery post? I have had advice to do it via post... Also any feedback on the above would be really appreciated

Many thanks!

Save yourself a stamp. Do it online.
It's good as it is. The first instance of it being a wrongly imposed charge will suffice and there will be no further consideration of any other point. You have this wrapped up. Keep tabs on Beavis at the RCJ tomorrow too. That case may well impact on the whole shenanigans of these cowboys.
mdavies
Hi sarahlhug82 - do you have an update. I have recieved similar letters from LPS for the same car park. Let me know. Many Thanks



Albert Ross
QUOTE (mdavies @ Fri, 2 Oct 2015 - 11:39) *
Hi sarahlhug82 - do you have an update. I have recieved similar letters from LPS for the same car park. Let me know. Many Thanks

It is most likely that the appeal is amongst a pile of 'Stayed for Beavis'

If you are at the 'formulate a popla appeal stage' Then you need to start a new topic; the process is markedly different now with one chance to submit, it seems.
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