Dear Sir/Madam,
POPLA appeal re MET Parking ticket number xxxxxxxxxx
The Registered Keeper is not liable for the parking charge and the vehicle was not improperly parked. As such, the parking 'charge' notice exceeds the appropriate amount. MET Parking is requiring payment from the Registered Keeper under Schedule 4 of the Protection of Freedoms Act 2012. The keeper says they have not met all the conditions imposed by this Act and so there is no obligation or liability on them at all. In addition they have failed to show that this standard fixed charge in that car park is a genuine pre-estimate of loss, have not formed any fair contract with the driver to justify the amount demanded and have not complied with all aspects of the BPA Code of Practice.
BPA CODE OF PRACTICE BREACH - NO 'CREDITOR' IDENTIFIED
The Notice I have received makes it clear that MET are relying on Schedule 4 of the Protection of Freedoms Act 2012. As such, there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged 'charge'. MET has failed to comply in the wording of their Notice to Keeper since they have failed to identify the “Creditor”. This may, in law, be MET or indeed some other party. The Act requires a Notice to Keeper to have words to the effect that “The Creditor is….”
The wording of Paragraph 9(2)(h) of Schedule 4 of the Act does not indicate that the creditor must be named, but “identified”. The driver is entitled to know the identity of the party with whom he has allegedly contracted and in failing to specifically identify the “Creditor”, MET has failed to provide any evidence that it, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions.
NO EVIDENCE OF PARKING TIME OR SUFFICIENT DETAIL OF CONTRAVENTION
A registered keeper like myself cannot make an informed decision based on a couple of photos of a car driving in and out of the entrance area of a car park at different times and no clear explanation of the alleged contravention.
The Operator is relying simply on pictures taken of a vehicle at first arrival and then when leaving. These pictures show no evidence at all of actual parking time or where the car was after driving in, whether it stayed in the car park or left and then returned within the recorded timescale.
The postal 'ticket' fails to clarify the issue and so it is a nullity, since it fails to meet the requirements for a Notice to Keeper under the Protection of Freedoms Act 2012.
The wording from the Notice to Keeper quoted fails to specify precisely which term of the alleged contract was allegedly breached; the Notice therefore fails to comply with the Protection of Freedoms Act 2012, Schedule 4 Clause 9(2)© and no keeper liability can arise.
ANPR REQUIREMENTS- PART 21 OF THE BPA CODE OF PRACTICE
MET Parking have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part21 (ANPR). I need POPLA to consider whether the Operator has shown documented evidence of contemporaneous manual checks of the cameras, clocks and related machinery in that particular car park. These maintenance checks are a requirement of section 21 of the Code.
UNCLEAR & NON-COMPLIANT SIGNAGE FORMING NO CONTRACT WITH DRIVERS The signage failed to comply with the BPA Code of Practice Appendix B, and that entrance signage is not readable by the driver of a moving vehicle as he enters the land cannot bind that driver into a contract.
I believe the signs and any core parking terms MET Parking 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, 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 and any consequences for breach, as was found in a comparable camera-reliant car park in the case of Excel Parking Services Ltd v Martin Cutts, 2011.
MET Parking needs to prove that I 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 me to park in exchange for paying the extortionate fixed amount the Operator is now demanding.
The idea that any driver would accept these terms knowingly is perverse and beyond credibility. This is not a fair ‘contract’ nor a contract at all.
So in addition, because the signs fail to properly inform drivers of the full terms & conditions in a very prominent place at a low enough height at the entrance, the elements of a contract have not been met. Any alleged contract would be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late.
MET Parking do not provide signage of sufficient written text size or at a suitable height to be read from the vehicle at the entrance or at any location on the premises. They may claim that generic signage is displayed around the car park on poles but this does not meet the requirements for consideration when forming the alleged contract.
NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
Were a contract to exist (which is denied) there has been no loss to MET Parking or the owners/managers of the retail park arising from the alleged overstay; accordingly the charge sought is an unenforceable contractual penalty.
Should MET Parking choose instead to claim that the charge is an agreed contractual charge (contrary to the wording in their notice) this fails on the grounds that (i) it is clearly punitive and intended as a deterrent, in that it only (allegedly) became payable upon the breach of other terms in the alleged contract (ii) no means of payment was available at the time the charge allegedly fell due and (iii) no VAT invoice was issued. Accordingly it is clearly a penalty and therefore unenforceable.
CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE TICKETS
MET Parking does not own the car park and we dispute that they have the authority to enter into contracts regarding the land or to pursue charges allegedly arising.
MET Parking has also not provided any evidence that it is lawfully entitled to demand money from the driver or keeper. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park they do not own, or indeed the lawful status to allege a breach of contract in their name.
MET Parking must provide documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier (not just a signed slip of paper saying it exists). Specifically, to comply with the Code of Practice, the contract needs to specifically grant MET Parking the right to pursue parking charges in the courts in their own name, as creditor.
CPUTR VIOLATION IN NOTICE OF APPEAL REJECTION
Paragraph 2 of the second page of the Appeal Rejection Notice dated 16/07/2013 states that I will be “required to pay the full amount of £100” should POPLA not rule in my favour. As well as being extremely misleading, this is a clear CPUTR violation, as I am still not required to pay anything in the event of my appeal failing
UNLAWFUL PENALTY CHARGE
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket.
Private parking tickets unrelated to any genuine loss are unenforceable penalties, as was found in Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review decision by Circuit Judge, February 2011), and UKCPS v Murphy (April 2012).
On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in the BPA CoP and not only fails to comply with basic contract law, but is a clear violation of the CPUTR 2008.
It is unfair and punitive and, as such, I respectfully request that this appeal be allowed.
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