POPLA Decisions

bazster

It's not the signs that are a problem for them (well they often are, but that's a different problem), it's the legal basis of the charge. If it's damages, they can't prove a loss. If it's a contractual charge, UTCCR comes into play, HMRC wants the VAT, and you get absurdities like, how can it make sense to allow someone to park out of a bay so long as they pay the appropriate charge?

They are damned if they do and damned if they don't. As I said on another thread, this is The Big Lie, which no-one in the councils of [STRIKE]the great and the wise[/STRIKE] the silly and the small will face up to.

Orrin

bazster wrote: »

It's not the signs that are a problem for them (well they often are, but that's a different problem), it's the legal basis of the charge. If it's damages, they can't prove a loss. If it's a contractual charge, UTCCR comes into play, HMRC wants the VAT, and you get absurdities like, how can it make sense to allow someone to park out of a bay so long as they pay the appropriate charge?

They are damned if they do and damned if they don't. As I said on another thread, this is The Big Lie, which no-one in the councils of [STRIKE]the great and the wise[/STRIKE] the silly and the small will face up to.

UTCCR wouldn't normally apply if it's a contractual charge as the core terms are exempt, however I agree VAT would be payable and that it doesn't make sense with regards to parking outside bays, not displaying a blue badge etc.

Do we know which PPCs routinely claim their "fines" are contractual charges and has anyone had any success reporting them?

https://online.hmrc.gov.uk/shortforms/form/TEH_IRF

nigelbb

Orrin wrote: »

Do we know which PPCs routinely claim their "fines" are contractual charges and has anyone had any success reporting them?

District Enforcement set up by three law graduates from Stafford University. First client - Stafford University - http://www.staffs.ac.uk/about_us/news_and_events/law-graduates-aim-to-clean-up-the-parking-industry-tcm4234703.jsp

http://district-enforcement.co.uk

[text deleted by MSE Forum Team] They perpetuate the Big Lie of the private parking industry that you are entering into a contract for parking with the PPC whereas even if there is a contract it is really with the landowner. Obviously the founders skipped the lectures on privity of contract or they would know that a 3rd-party cannot sue on behalf of the principal (in this case the landowner).

Coupon-mad

Here's a case just lost against Armtrac (luckily the OP knows not to pay!!).


APPEAL WAS NOT FOCUSSED ON PENALTY (EVEN THOUGH A SIGN THERE USED THE TERM!) NOR DID IT ASK FOR THE CONTRACT WITH THE LANDOWNER. HENCE IT FAILED AS IT WAS BASED TOO MUCH AROUND THE TICKET BEING DISPLAYED UPDSIDE DOWN - WHICH THE SIGNAGE DID COVER SO POPLA REFUSED THE APPEAL:

http://forums.pepipoo.com/index.php?showtopic=78054&st=20

POST #33 HAS THE APPEAL WORDING:


Re: Parking Charge Notice (XXXXXXXXXXX)
I was the registered keeper (and driver) of vehicle registration number *******. As the registered keeper (and driver) of this vehicle, I dispute and challenge the charge for the reasons set out below.
Further evidence has/will be sent separately via Registered Post and includes:
• (Fig 1) Copy of valid car park ticket. *Note timings for arrival & valid until, which are inaccurate being an hour ahead of actual time on 30/3/13*
• ( Figs 2a & 2b) Copy of PCN ref no. xxxxxxxxxx. *Note VAT No. bottom right*
• (Fig 3a & 3b) Copies of my email ‘appeal’ to K.B.T CORNWALL LTD t/as ARMTRAC and their automated reply, complete with headers, both dated 31/3/13.
• (Fig 4) Copy of ‘rejection’ letter from K.B.T CORNWALL LTD t/as ARMTRAC dated 8th April. * Note VAT no. absent*
• Copies of evidence supplied by K.B.T CORNWALL LTD t/as ARMTRAC:-

1/ (Fig 5) Private Property/Warning sign which are situated at strategic points along a 0.4 mile private lane leading to designated perimeter of Sandy Acres car park & within.

**As the wording implies prescribed parking areas, I consider this to be misleading outside of said area. If contract between K.B.T CORNWALL LTD t/as ARMTRAC and the Landowner(s) agrees to signage along this lane and adjoining land (e.g as a deterrent to parking outside of the car park), then shouldn’t the wording be different? NOTE Given there was up to a near 1-2 mile return trip on foot from any given point complete with 9’ 3” surfboard; this was never an option!!**

2/ (Fig 6) Sandy Acres ‘Tariff Board’
**Date stamped as 3/3/13 and clearly presents as a breach of the BPA’s Code of Practice Condition 14 – use of the word penalties twice is misrepresentation of authority**

**The Protection of Freedoms Act 2012 is also violated by threatening clamping of vehicles and subsequent release fee (£100)**

**It is further misleading, as the PCN is stated at being £70 (with reductions if paid within 14 days) and not £100 (reduced to £60 etc.) as stated elsewhere**

3/ (Fig 7) Sheet with five partially date stamped pictures of the parked vehicle.
**Given that the only Pay & Display machine at the entrance had an inaccurate time mechanism (which would self-correct later when BST began) – can it be assumed that the time/date feature on the camera used was any more accurate? If not, then these pictures could have been taken at any time.
An hour or so earlier; and after removing my surfboard from the roof rack and locking the car; I’d briefly wandered off out of sight of the vehicle to gauge the swell before returning and completing my pre-surf tasks..**

• Copies of digital photographs taken personally on 14th April
(Figs 8) Entrance to Sandy Acres. The sign advising ‘Payment on Arrival’ was adhered to; given this was my first visit and being unfamiliar with the layout. Contrary to the rather insulting tone in the ‘rejection’ letter from K.B.T CORNWALL LTD t/as ARMTRAC dated 8th April (paragraph 4 – Fig 4).

(Figs 8a & 8b) Update of the Sandy Acres ‘Tariff Board’ provided by K.B.T CORNWALL LTD t/as ARMTRAC as ‘evidence’ (See Fig 6)
**Although the confusing PCN amount issue has been resolved with use of some ultra-sticky tape – the breaches noted above through using the word ‘penalties’ twice and ‘clamping’; still apply**

(Fig 9) An example of a ‘Have you Paid & Displayed warning’ sign in the car parking area. ** Another breach of the BPA’s Code of Practice Condition 14 – use of the word ‘penalties’ is misrepresentation of authority**

Brief Timeline of Events

30/3/13 – Approx. 2.30pm – Arrive and purchase a 3 hour ticket at £1.30. The ticket is placed on the dash board, but not stuck to the windscreen – I hadn’t really noted if it was a ‘stick on’ or not - and I proceed a further 0.4 mile to the main parking area.

Swell check. Finish pre surf preps & tasks – which involved the opening of tailgate & doors with the inherent risk of adverse movement of air within car, on a day where there was a gusty offshore (E-SE) breeze. Surfing.

Around 4pm – Return to vehicle to find (male) Operative (+++++++) is in the process of issuing the offending PCN and apparently taking photographs.
This action is queried, as I believe absolutely that since my arrival I have acted in good faith and not sought to avoid any rightful fees or conditions.

The operative advises that I can appeal via writing to the PO Box or email addresses on the reverse of the PCN. The chance to prove I have a valid ticket and reduce any ‘losses’ to K.B.T CORNWALL LTD t/as ARMTRAC is verbally denied (politely); the reason given being ‘the process has already begun’. I consider this an unfair course of action as I have willingly offered to assist and prevent un-necessary administration.

I made sure the Operative physically witnessed I am in possession of a valid ticket; however reluctant he appeared.

**Note: No assurance that the Operative has been correctly trained as per BPA CoP Condition 10, or is fully conversant with the full BPA guidelines, has been forthcoming from K.B.T CORNWALL LTD t/as ARMTRAC. I consider this to be a breach of said condition**

31/3/13: I send a short email ‘appeal’ to K.B.T CORNWALL LTD t/as ARMTRAC. It offers physical evidence if required and leaves open the chance of further discussion and clarification, which rather naively I expected. An automated acknowledgement reply is received.
I am wary that it is only a ‘generic’ AOL address; and not a more business like specific domain name. The PO Box number mail address and (only) a single ‘(0871)’ telephone number – which provides additional income to K.B.T CORNWALL LTD t/as ARMTRAC – highlights that there is unsatisfactory access to communicating with K.B.T CORNWALL LTD t/as ARMTRAC.

(**The internet payment URL (payarmtrac.co.uk) also appears to be insecure, which is of concern as sensitive information is expected to be exchanged if using**)

9/4/13: After a maximum of 4 working days a ‘form’ letter of ‘rejection’ dated 8th April is received. It leaves no doubt there is no room for further discussion.

The chance therefore for K.B.T CORNWALL LTD t/as ARMTRAC to show any professional discretion is summarily dismissed. I am severely disappointed that the good faith I have shown throughout has been treated with such contempt.

And the point of purchasing a valid ticket when not doing so appears to attract little if any different courses of action from K.B.T CORNWALL LTD t/as ARMTRAC is…???

Further Contestations
No contract
As there are identified irregularities above, I believe there has been categorically no valid nor enforceable contract between myself and K.B.T CORNWALL LTD T/AS ARMTRAC. I agreed to the rightful parking fees, and made every effort to offer conclusive proof on site and after. That this was not accepted lacks the professionalism expected from BPA CoP Condition 10 and therefore is a clear breach.

VAT
If K.B.T Cornwall Ltd t/as Armtrac were to believe that this ticket is in effect a contractual invoice to recover reasonable loss (loss which could easily have been avoided); then why are they not apparently adhering to any of the regulations surrounding VAT?
I have not been provided with a VAT invoice, which would illustrate exactly what service I have apparently received in exchange for the 'charge'.

The BPA have stated categorically in the past, that private parking charges do not attract VAT (based on the VCS -v- HMRC 2013 appeal decision); and therefore it follows that private parking charges cannot equate to a contractual matter; and can, at best, only represent a pre-estimate of ‘loss’.

A private parking company cannot allege a contract exists on the one hand (for POPLA and for the public) and yet suggest it's non-contractual and therefore a non-VAT matter (for HMRC).

I am suspicious too of the absence of their VAT number on their headed paper.

Site Agreement/Contract with Landowner
As alluded to above, K.B.T CORNWALL LTD T/AS ARMTRAC have not supplied a copy of the contract and site agreement between them and the landowner, even though they are at pains to state they “have a duty to the landowners” in their ‘letter of rejection’.
I ask that POPLA request such if not already in possession and scrutinises accordingly, because I contend that K.B.T CORNWALL LTD T/AS ARMTRAC may not have a sufficient contract or site agreement which would give them any site ownership/assignment of interest to give them sufficient legal status to pursue Parking Charge Notices with drivers.
Indeed as far as I am aware, the only items relating to K.B.T CORNWALL LTD T/AS ARMTRAC on that site are the signs – which I have shown to be even more contentious. There are no permanent staff, nor ANPR/camera equipment present and so K.B.T CORNWALL LTD T/AS ARMTRAC appear to have insufficient legal status there whatsoever, that could enable them to make contractual agreements with visitors.

Insufficient reliable evidence from K.B.T CORNWALL LTD T/AS ARMTRAC
The visual evidence of signage sent by K.B.T CORNWALL LTD T/AS ARMTRAC are clearly proven breaches of BPA CoP; and in one case the Protection of Freedoms Act 2012.

The photos of the car prove little, although I would concede that a) the original digital files will be conclusively date stamped b) the image timed at 16.00.12 would appear to show my valid ticket face down – which it may or may not have been at any other.
No breach and no trespass
If there was no contract, then at most the allegation can only be a civil trespass. None has been alleged.

I respectfully ask POPLA to direct K.B.T Cornwall Ltd t/as Armtrac to cancel this ticket.

Yours faithfully ''

**************************************************************

POPLA'S REFUSAL DECISION:

The operator observed a vehicle with registration mark XXXXXXX parked in Sandy Acres car park, without correctly displaying a valid pay and display valid ticket. The operator then issued a parking charge notice. This is not disputed by the appellant.
The operator’s case is that the terms and conditions in the car park are clearly visible on the warning signs at the entrance of the car park and throughout the site. A copy of the sign and a copy of the conditions have been enclosed. The sign is clearly displayed. It states that customers are required to display a pay and display ticket face up clearly showing the date and the expiry time on the dashboard in order to be valid. It is the driver’s responsibility to ensure that the voucher is clearly on display in the dashboard or windscreen area, prior to leaving the vehicle.
The appellant made representations, enclosing a pay and display ticket that it was valid in time and would have covered parking of the vehicle if it had been properly displayed, as required. He provided a copy of the ticket. The appellant admitted that the parking voucher was placed on the dashboard in view of windscreen on the driver’s site because he was rushing to go surfing. However, he submits that it is a genuine mistake and the payment he made for the voucher should be taken into account.
The operator rejected the representations as set out in the correspondence they sent because; they submit a breach of the contract had occurred, that is, parking without displaying a valid voucher. It is one of the conditions of the Sandy Acres car park, displayed clearly on the signs, to park displaying correctly a valid voucher on the vehicle. It is the driver’s responsibility to ensure that the voucher is clearly displayed, faced up in the windscreen of the car at all the times.
Considering carefully all the evidence before me, I must find as a fact that, on this particular occasion, by not clearly displaying the pay and display voucher at all the times, there occurred a breach of the car park conditions to which the appellant have deemed to have accepted on purchasing the pay and display ticket to park his vehicle.
Accordingly, the appeal must be refused.

**************************************************************

Orrin

nigelbb wrote: »

District Enforcement set up by three law graduates from Stafford University. First client - Stafford University - http://www.staffs.ac.uk/about_us/news_and_events/law-graduates-aim-to-clean-up-the-parking-industry-tcm4234703.jsp

http://district-enforcement.co.uk

They are no different from any of the other scammers in that they perpetuate the Big Lie of the private parking industry that you are entering into a contract for parking with the PPC whereas even if there is a contract it is really with the landowner. Obviously the founders skipped the lectures on privity of contract or they would know that a 3rd-party cannot sue on behalf of the principal (in this case the landowner).

It's an interesting read and I wonder how their 100% litigation policy is working out for them?

Privity of contract isn't the magic bullet you seem to think it is by the way, but that's another discussion.

bazster

Orrin wrote: »

UTCCR wouldn't normally apply if it's a contractual charge as the core terms are exempt, however I agree VAT would be payable and that it doesn't make sense with regards to parking outside bays, not displaying a blue badge etc.

Do we know which PPCs routinely claim their "fines" are contractual charges and has anyone had any success reporting them?

https://online.hmrc.gov.uk/shortforms/form/TEH_IRF

The terms giving rise to the charges are not core terms.

Stroma

Another Parking Eye loss is being reported on pepipoo
http://forums.pepipoo.com/index.php?act=attach&type=post&id=22826

bazster

The usual grounds. How much longer can this farce continue?

Orrin

bazster wrote: »

The terms giving rise to the charges are not core terms.

If the charge is the sum payable for the parking service then by definition it's a core term. If you're referring specifically to PE then no, but as we've said they don't go the contractual sum route. The Athena/Lidl signs would be a better example (although they are inadequate on other grounds).

Stroma wrote:

Another Parking Eye loss is being reported on pepipoo
http://forums.pepipoo.com/index.php?...=post&id=22826

Oh dear. Poor PE actually attempt to address the weaknesses in their position but fail on the genuine pre-estimate of loss. I wonder why that could be?

bazster

Orrin wrote: »

If the charge is the sum payable for the parking service then by definition it's a core term. If you're referring specifically to PE then no, but as we've said they don't go the contractual sum route. The Athena/Lidl signs would be a better example (although they are inadequate on other grounds).

If the terms only have effect after the failure of other terms then they are not core terms.