Excel Parking - Appeal denied, what next?

How about this?


I received a PCN dated 03/04/2013 stating I had allegedly breached the car park terms and conditions and that the alleged contravention is ‘parked without displaying a valid ticket/permit’.
At 12.32pm on Sunday 24 March 2013 I entered the Cavendish Retail Park Car Park. I attempted to obtain a parking ticket however both machines were out of order. I displayed a notice in my windscreen stating ‘TICKET MACHINES NOT WORKING’ and the date and time. I also spoke to other motorists who were experiencing the same issue and, on looking at other cars, I was not the only motorist not able to display a ticket.

In view of circumstances being beyond my control, and the fact that I had fully intended to pay but could not, I do not agree with the charge and would like you to consider the following as my appeal.
1. On the material date, the Appellant drove to the car park in question, and attempted to purchase a ticket for the duration of the stay. However, both of the ticket machines were out of order, and the Appellant was unable to purchase a ticket through no fault of his own. A recent response from the BPA enquiring about this was:
Clearly “putting the customer at the heart of your thinking” would suggest that any parking systems and equipment deployed to control entry, exit and payment for parking should be in operation and motorists provided with the means to comply with any requirements for payment. To undertake enforcement action of any kind when this was not the case would be unfair. It is the adjudication services, both statutory and POPLA that would deal with this unfairness should it arise. Guidance of this kind is not something the BPA currently publishes since it is common sense to some extent and the appeals mechanism is in place.

In practice when payment devices are malfunctioning or not available common sense prevails in most cases and especially when the motorist draws attention to the fact. Most parking operators, public and private sector have routines in place to regularly inspect and maintain equipment to ensure that it is functioning correctly and most equipment manufactured in recent years can be monitored remotely over the internet. It is also worth remembering that in most cases, when an enforcement agent enters say a pay and display car park, the first thing they do is to check the equipment before undertaking enforcement action. This is often evidenced by then physically purchasing a ticket to prove it functions correctly; this also provides the car park operator with times, proof that the enforcement agent was present in the car park. There are a number of other similar or related working practices.
The Apellant displayed a notice in the windscreen stating ‘TICKET MACHINES NOT WORKING’ and the date and time, as covered in the above quote.
2. The Operator is a member of the British Parking Association, and the BPA Code of Practice states, in section 7.1, that the Operator must have written authority from the landowner to recover parking charges, including pursuing through court action. The Appellant puts the Operator to strict proof that they have the necessary authorisation at the location.


3. The Operator states, in their letter of rejection, that the parking charge represents a contractual breach. Under established contract law, a party can only claim for their actual, or pre-estimated losses arising directly from a breach of contract. The Operator has not supplied any evidence or breakdown of such losses, which, the Appellant submits, would in reality be a vanishingly small sum, and nowhere near the amount demanded by the Operator.
4. The Appellant refers 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 was that "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.


5. The Appellant further refers the Adjudicator to recent decisions made by POPLA, many of which are now in the public domain. These include statements such as “However, I must find as a fact that a term of the contract was that if the vehicle parked without complying with the conditions of the contract, the Appellant agreed to pay a parking charge of £85. The Operator is seeking to enforce the contract, by seeking payment of the charge which the Appellant accepted as a term of the contract by parking his vehicle …” and similar rulings. In light of the evidence of Paragraph 4 above, this interpretation can no longer be considered correct.


6. The Appellant asserts that, for the reasons stated above, no “relevant obligation” has been created, and that the parking charge would not be recoverable by the Operator under common civil law. The Appellant therefore invites the Adjudicator to allow the appeal.

Thank you that's very much appreciated. I apologise if I have appeared ignorant however I have obviously never done this before (and hope I never have to again!)