PCN - appeal to IAS

dr_jones · 21 January 2015 at 3:05PM

Hi, first of all - great content on here, really helpful and fascinating to read.

My girlfriend was issued with a PCN from Vehicle Control Services for staying on a retail park (in England) 16 minutes more than the maximum 2 hours. The car park is free. She was driving her own private vehicle.

Sequence of events so far: -

Date of contravention: 04/12/2014

PCN issued on 12/12/2014 and key phrase used: "Allegedly breaching the car park terms and conditions"

Appeal to VCS sent on 02/01/2015 outlining mitigating circumstances (pointless I know) and also pointing out that £100 is not a genuine pre-estimate of loss. Unfortunately I think she has also acknowledged in the appeal that she was the driver.

Appeal rejected on 14/01/2015 - no mention of the genuine pre-estimate of loss. Key phrases were:
"You were found to be in breach of the car parks terms and conditions"
"When parking on private land, a motorist freely enters into an agreement to abide by the conditions of parking in return for permission to park. It is the motorist's responsibility to ensure that he or she abides by any clearly displayed conditions of parking. It is clear that the terms of parking stated that motorist must abide by the maximum stay or the motorist would face liability for a parking charge."

The wording on the sign at the retail park is "Entry to or use of this privately operated and managed car park is subject to current terms and conditions of vehicle control service ltd. Motorists/persons utilising this car park hereby accept in full the terms and conditions. Failure to comply will result in a Parking Charge Notice being issued. Contraventions will be charged at £100 discounted to £60"

I am now looking to draft an appeal to IAS hopefully concentrating on the GPEOL and was looking for advice on how best to approach it given the terminology used by VCS..?

A minor additional point may also be that while the signs are large and placed in various locations - if I turn right immediately after entering the car park I do not drive directly past any of the signs. I've taken a picture of this location.

Any photos required can be uploaded tonight when at home.

Many thanks

Redx · 21 January 2015 at 4:19PM

dr_jones · 23 January 2015 at 2:06PM

Having trawled through many of threads here (and the IPC code of practice) - I've drafted an appeal based on the below points - any feedback would be greatly appreciated!

I tried to include links to photos but apparently as a new user I'm not allowed to do this.

To my mind the points regarding signage and GPEOL are irrefutable but I guess this is IAS we're talking about.

The final point re: not authorised to issue charges is more of a 'try my luck'.

Site Signage is not compliant with Schedule 1 of the IPC Code of Practice:

1. The car park has no sign at the entrance to the car park to indicate to the driver that parking restrictions are in place (see photo 1). There is a post where such a sign would ideally be situated but this is either missing or has never been in place (see photo 2).

2. The number of signs within the car park is inadequate, thus failing to comply with the ‘Repeater Signs’ section of Schedule 1. Similar to the entrance there are more ‘empty’ posts where signs should be located but are missing (see photo 3). As such, a driver can enter the car park, immediately turn right and park their car without ever passing a sign (see photo 4). There are no visible restrictions that state a driver cannot turn right at this point.

3. The signs fail to comply with the ‘Contrast and Illumination’ section of Schedule 1 which states “Other colour combinations can be adopted at your discretion but you should avoid combinations which might cause difficulties for the visually impaired such as blue and yellow”. As shown in photo 5, the signs that remain in place at the site all adopt the colour combination of blue and yellow including the section that indicates a maximum stay of 2 hours and also the section that informs the driver that by entering the car park they are accepting the terms and conditions.

No contract forged between driver and operator

1. As a result of the non-compliant signage outlined above it cannot be deemed that the driver entered into a contract with the operator.

The Charge is not a genuine pre-estimate of loss:

1. If a contract had existed, the Parking Charge Notice sent by VCS clearly states that it was issued for “allegedly breaching the car park terms and conditions” (see photo 6). The sign within the car park states that “failure to comply” with the terms and conditions will result in a parking charge of £100 (see photo 7). It is my understanding from Schedule 5 of the IPC Code of Practice this means the charge is not a contractual fee and so must then be a genuine pre-estimate of loss. VCS have not demonstrated the charge to be a genuine pre-estimate of loss. This issue was raised in the appeal but VCS failed to even acknowledge the point in their rejection. A genuine pre-estimate of loss cannot include day-to-day costs or site maintenance because these exist whether a breach occurs or not. Nor should it include appeal processes or debt recovery as these costs are not incurred as a direct result of the alleged breach. Not all parking charge notices will reach these stages. The car park is free of charge for the first 2 hours and so £100 far exceeds any genuine pre-estimate of loss on the part of the landowner or site operator for the alleged breach of staying 16 minutes over this time. There is no loss because the operator would have been in the same position whether the alleged breach occurred or not.

VCS are not authorised to recover charges:

1. VCS have not provided evidence to show that they have the required authority to issue and recover parking charges on this land. A full un-redacted copy of the contract signed and dated by the landowner is required as proof. A witness statement or a signed piece of paper to say that a contract exists is not sufficient evidence, it offers no proof whatsoever that the alleged witness or signatory has ever seen the relevant contract or indeed is even an employee of the landowner.

Photo1 (entrance) http

/s1298.photobucket.com/user/waltonap/media/Mobile%20Uploads/IMAG0510_zps09d8e37f.jpg.html
Photo2 (empty post) http

/s1298.photobucket.com/user/waltonap/media/Mobile%20Uploads/IMAG0513_zpse05554e9.jpg.html
Photo 3 (empty post #2) http

/s1298.photobucket.com/user/waltonap/media/Mobile%20Uploads/IMAG0511_zps9efd8484.jpg.html
Photo4 (Route) http

/s1298.photobucket.com/user/waltonap/media/Mobile%20Uploads/IMAG0509_zps992c7c8f.jpg.html
Photo5 (Sign) http

/s1298.photobucket.com/user/waltonap/media/Mobile%20Uploads/IMAG0504_zps9fc42eb5.jpg.html
Photo6 (no photo yet)
Photo7 (T&C) http

/s1298.photobucket.com/user/waltonap/media/Mobile%20Uploads/IMAG0505_zps9e18cc4e.jpg.html

Redx · 23 January 2015 at 2:16PM

you can use tinypic or photobucket for the photos, then add a "dead link" to them, meaning paste in the url and change http to hxxp - its that simple

The_Deep · 23 January 2015 at 2:21PM

Clearly there can be no loss. It will be interesting therefore if the IPC agrees with the PPC that there is, but does not show you the computation.

hoohoo · 23 January 2015 at 3:00PM

You can add.

Additionally, VCS have in the past submitted documents to POPLA which show their average cost per ticket issued to be under £20.

dr_jones · 23 January 2015 at 3:40PM

Added dead links for photos at bottom of appeal

dr_jones · 4 February 2015 at 10:49AM

I must confess part of me secretly thought that IAS can't be *that* bad but here's the proof...

I especially find the notion that the onus is on me to prove the charge is not GPEOL utterly ridiculous.

Appeal Outcome: Dismissed

The Adjudicators comments are as follows:
"The Appellant challenges the parking charge on the basis there were an insufficient number of signs to provide sufficient notice that the driver is entering a contract. In addition the signs breach the code of practice. The Appellant also claims the parking charge should not be allowed as the charge does not represent a genuine pre-estimate of loss and the Operator has no authority.

A breach of the code of practice does not mean the charge is automatically unenforceable. The code is best practice. For the charge to be enforceable the Operator does not have to comply with best practice, they have to provide sufficient notice. For example if the typeface did not comply but the signs were clearly visible and the content legible they would provide sufficient notice.

The lack of a sign at the entrance is not fatal to the charge in my view. The driver is still driving at that point and has little opportunity to consider any such sign in any event. I am more concerned that once the driver exits the vehicle and looks around, as all drivers should, that signs are visible, which moves us onto the Appellant’s next point.

The Appellant provides a number of photographs showing a lack of signs in the car park. By contrast the Operator provides photographs showing a large number of signs around the car park. The photographs do not appear to be inconsistent. Consequently, as the onus in this appeal in on the Appellant to prove their claims on the balance of probability, I am not satisfied to the required standard that there were insufficient signs. Unless the Appellant can point to any particular difficulty which means they were unable to see the blue and yellow signs, I do not intend to accept the appeal on this point.

The Appellant next argues the charge is not a genuine pre estimate of loss. The Operator claims the charge is an agreed contractual term. Unfortunately for the Operator they have not provided evidence of the contractual sign in a format I can read therefore I have to accept the evidence provided by the Appellant. This seems to confirm that the charge is imposed for breach of contract rather than a contractual term. However, in such a case loss is only one issue and loss does not only arise where the car park is pay and display. In addition, as the onus is on the Appellant and they have provided no further argument on this point I am not minded to allow the appeal on this ground.

The final argument refers to the Operator’s authority. This is arguably irrelevant; however, the Operator has provided evidence in any event.

hoohoo · 4 February 2015 at 11:07AM

Another ludicrous judgment

You could have proven the GPEOL by submitting from here
http://www.parking-prankster.com/excel-parking.html

The whole point of the appeals system is to avoid court. However, if the appeals system is useless, the only option is to use it to show willing, then inform the operator that the verdict was not conclusive due to the limitations of the system the operator chose to use, and therefore go to court anyway.

rdr · 4 February 2015 at 11:24AM

dr_jones wrote: »

I must confess part of me secretly thought that IAS can't be *that* bad but here's the proof...

I especially find the notion that the onus is on me to prove the charge is not GPEOL utterly ridiculous.

Appeal Outcome: Dismissed

The Adjudicators comments are as follows:
"The Appellant challenges the parking charge on the basis there were an insufficient number of signs to provide sufficient notice that the driver is entering a contract. In addition the signs breach the code of practice. The Appellant also claims the parking charge should not be allowed as the charge does not represent a genuine pre-estimate of loss and the Operator has no authority.

A breach of the code of practice does not mean the charge is automatically unenforceable. The code is best practice. For the charge to be enforceable the Operator does not have to comply with best practice, they have to provide sufficient notice. For example if the typeface did not comply but the signs were clearly visible and the content legible they would provide sufficient notice.

The lack of a sign at the entrance is not fatal to the charge in my view. The driver is still driving at that point and has little opportunity to consider any such sign in any event. I am more concerned that once the driver exits the vehicle and looks around, as all drivers should, that signs are visible, which moves us onto the Appellant’s next point.

The Appellant provides a number of photographs showing a lack of signs in the car park. By contrast the Operator provides photographs showing a large number of signs around the car park. The photographs do not appear to be inconsistent. Consequently, as the onus in this appeal in on the Appellant to prove their claims on the balance of probability, I am not satisfied to the required standard that there were insufficient signs. Unless the Appellant can point to any particular difficulty which means they were unable to see the blue and yellow signs, I do not intend to accept the appeal on this point.

The Appellant next argues the charge is not a genuine pre estimate of loss. The Operator claims the charge is an agreed contractual term. Unfortunately for the Operator they have not provided evidence of the contractual sign in a format I can read therefore I have to accept the evidence provided by the Appellant. This seems to confirm that the charge is imposed for breach of contract rather than a contractual term. However, in such a case loss is only one issue and loss does not only arise where the car park is pay and display. In addition, as the onus is on the Appellant and they have provided no further argument on this point I am not minded to allow the appeal on this ground.

The final argument refers to the Operator’s authority. This is arguably irrelevant; however, the Operator has provided evidence in any event.

The section in bold appears to leave the issue open for the parker to have another go at rebutting the sign issue.

dr_jones · 4 February 2015 at 12:16PM

rdr wrote: »

The section in bold appears to leave the issue open for the parker to have another go at rebutting the sign issue.

I think they're specifically referring to the fact that I questioned the colour of the signs (which are in breach of their COP) - unless I can prove that I'm visually impaired they don't care what colour they are - which makes a mockery of the COP.

PCN - appeal to IAS

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