The most expensive KFC ever!!!!

MerseyBoy

Dear Sir/Madam,

Please find my appealbelow:

Popla verification code:********

Excel PCN number:*********

Registration number: **********



On the 28thMarch, 2013, Excel Parking issued a Parking Charge Notice for £100 stating thatthe above vehicle was recorded on their automatic number plate recognitionsystem as having been parked in the Peel Centre Car Park, Stockport (on 8/2/13)“without displaying a valid ticket/permit”. The duration of the stay wasrecorded at 32 minutes.

Appeal

1. Giventhat the duration of stay was recorded at 32 minutes, and the tariff set by theoperator for a 1-2 hour stay is just £1 (see appendix 1), then the amount ofthe “penalty” imposed is disproportionate to any alleged “loss” by ExcelParking, and is therefore punitive, contravening the Unfair Contract Terms Act1997. Furthermore, the Department for Transport guidelines state, (in Section 16 FrequentlyAsked Questions), that: “charges for breaking a parking contract must bereasonable and a genuine pre-estimate of loss. This means charges mustcompensate the landholder only for the loss they are likely to sufferbecause the parking contract has been broken. For example, to cover the unpaidcharges and the administrative costs associated with issuing the ticket torecover the charges. Charges may not be set at higher levels than necessary torecover business losses and the intention should not be to penalise thedriver."

In this case, when requested by the Appellant, Excel Parking failed toprovide any calculation to show how the £100 parking charge was arrived at,whether as an actual or pre-estimated loss. If the sum claimed were a genuinepre-estimate of loss, it follows that the loss cannot be £60 on days 1 to 14,then £100 thereafter. This is clearly an arbitrary sum invented by Excel, usingthe maximum suggested penalty available to private parking operators as set outin the BPA Code of practice.

Indeed, the TheBPA code of practice is deliberately obscure on the definition of the amount theirmembers should charge in these circumstances. In one paragraph it states chargesshould be “reasonable and reflect the loss incurred”, then in another paragraphit suggests a charging structure.

The actual wording used within the Code of Practice is as follows:
“If the parking charge that the driver is being asked to pay is for a breach ofcontract or act of trespass, this charge must be based on the genuine pre-estimateof loss that you suffer.” It goes on to say, “If your parking charge is basedupon a contractually agreed sum, that charge cannot be punitive orunreasonable.” Since the cost of one hour’s parking is £1, how can a charge of 100times that be considered as non punitive or reasonable? The Appellant invitesthe adjudicator to calculate this in his/her consideration.

Indeed, it is Appellant’s position that Excel Parking has suffered noloss as they are unable to claim trespass in their own name. If they claim tobe acting on behalf of their client they have not shown that to be the casesince all the signs at the Peel Centre and the PCN refer only to “Excel Parking”.As the Appellant submits that the amount of the charge is disproportionate, the burdenof proof shifts to the Operator to prove otherwise.

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2. In the appellant’s appeal to Excel Parking, the operator was asked toprovide evidence of any proprietary interest in the Peel Centre, which wouldallow Excel to create contracts with drivers and issue parking charge noticesfor breaching such contracts. The Appellant refers the Adjudicator to the recent Appeal Courtdecision 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 ofPrivate Parking Charges. It was stated that: "If those charges areconsideration 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 ofthe Court was that "I would hold, therefore, that the monies that VCS collectedfrom motorists by enforcement of parking charges were not consideration movingfrom the landowner in return for the supply of parking services." In otherwords, they are not, as the Operator asserts, a contractual term. If they werea contractual term, the Operator would have to provide a VAT invoice, toprovide a means of payment at the point of supply, and to account to HMRC forthe VAT element of the charge. The Appellant asserts that these requirementshave not been met. It must therefore be concluded that the Operator's chargesare in fact damages, or penalties, for which the Operator must demonstrate hisactual, or pre-estimated, losses, as set out in point 1 above. In addition tothis, Paragraph 46 of the Decision in VCS v HMRC it states: “VCS ispermitted under the contract [with the landowner] to collect and retain allfees and charges from parking enforcement action.”

Membership of the Approved Operator Scheme requires the parking company to haveclear authorisation from the landowner, if itself is not the landowner, as totheir role in relation to the parking control and enforcement. This is set outin the BPA Code of Practice. In thisinstance, Excel have not to date adduced any evidence of ownership of the landat the Peel Centre, and the situation is therefore analogous to that of VCS inthe case referred to. This ruling was reinforced recently by Judge McIlwaine inthe case of VCS v Ibbotson in the S!!!!horpe County Court.

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3. The Appellant conteststhat any “contract” can be formed with a driver/registered keeper of a vehicleupon entering a site operated by Excel. The appellant believes there isno contract with the landowner/occupier that entitles Excel to levy thesecharges and that excel therefore has no authority to issue parking chargenotices (PCNs). This being the case, the burden of proof shifts to ExcelParking to prove otherwise so the Appellant requires that excel produce a copyof their contract with the Peel Centre and invites the adjudicator to scrutinisethis. Indeed, Excel Parkingare only an agent working for the owner and their signs do not help them toform a contract without any consideration capable of being offered. Again, VCS-v- HMRC is the binding decision in the Upper Chamber which covers this issuewith compelling statements of fact about this sort of business model.

Even if a basic contract is produced and mentions PCNs, the lack ofownership or assignment of title or interest in the land reduces any contractto one that exists simply on an agency basis between Excel Parking and theowner/occupier, containing nothing that excel can lawfully use in their ownname as a mere agent, that could impact on a third party customer. Furthermore,the adjudicator should note that private Parking Company charges are unfair terms (and therefore not binding)pursuant to the Unfair Terms in Consumer Contracts Regulations (1999). Inparticular, Schedule 2 of those Regulations gives an indicative (andnon-exhaustive) list of terms which may be regarded as unfair and includes atSchedule 2(1)(e) "Terms which have the object or effect of requiring anyconsumer who fails to fulfil his obligation to pay a disproportionately highsum in compensation."

Furthermore, Regulation 5(1)states that: "A contractual term which has not been individuallynegotiated shall be regarded as unfair if, contrary to the requirement of goodfaith, it causes a significant imbalance in the parties' rights and obligationsarising under the contract, to the detriment of the consumer" and 5(2)states: "A term shall always be regarded as not having been individuallynegotiated where it has been drafted in advance and the consumer has thereforenot been able to influence the outcome”.

Further to the points raised in 1) above, The Appellant has the right to know howthe charge of £100 is made up. This is a basic right of contract and withoutsuitable explanation the Appellant does not believe Excel Parking have met asufficiently high enough standard as the principal party in the contractualapplication, if indeed they even had the right to make that offer and call it acontract.



7. The BPAcode of practice contains the following:

21 Automaticnumber plate recognition (ANPR)

21.1 You mayuse ANPR camera technology to manage, control and enforce parking in privatecar parks, as long as you do this in a reasonable, consistent and transparentmanner. Your signs at the car park must tell drivers that you are using thistechnology and what you will use the

datacaptured by ANPR cameras for.

21.2 Qualitychecks: before you issue a parking charge notice you must carry out a manualquality check of the ANPR images to reduce errors and make sure that it isappropriate to take action. Full details of the items you should check arelisted in the Operators’ Handbook.

21.3 Youmust keep any ANPR equipment you use in your car parks in good working order.You need to make sure the data you are collecting is accurate, securely heldand cannot be tampered with. The processes that you use to manage your ANPRsystem may be audited by our

complianceteam or our agents.

21.4 It isalso a condition of the Code that, if you receive and process vehicle orregistered keeper data, you must:

• beregistered with the Information Commissioner

• keep tothe Data Protection Act

• follow theDVLA requirements concerning the data

• follow theguidelines from the Information Commissioner’s Office on the use of CCTV andANPR cameras, and on keeping and sharing personal data such as vehicleregistration marks.

21.5 If youwant to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012and you have not issued and delivered a parking charge notice to the driver inthe car park where the parking event took place, your Notice to Keeper mustmeet the strict requirements and timetable set out in the Schedule (inparticular paragraph 9).



I have seenno evidence that Excel have complied with these BPA Code requirements for ANPRissued tickets so require them to evidence their compliance to POPLA.



On 31stMay, 2013, the Appellant received a response from Excel acknowledging hisappeal of April 19. The letter said Excel were satisfied that the PCN wasissued correctly for a “breach of terms and conditions” and that the appeal berejected on the grounds that a valid permit be required for what is a “Pay andDisplay Car Park”. Excel noted the Appellant’s comments that he was parked inan area reserved for KFC restaurant customers (as depicted by red stripesacross the parking bays, appendix ...) at the time of the alleged offence, butthat a valid ticket/permit was still required. The Appellant maintains that thered parking bays do not form part of the Peel Centre Car Park as operated byExcel, and as such no ticket is required to park here. The signage above thereserved KFC parking bays does not state that a ticket is required to parkthere, nor is this indicated on the Excel signs upon entry to the car park(appendix ...).



Uponrejecting the Appellant’s case, Excel then demanded full payment of the PCNtotalling £100, for “failure to appeal/pay the PCN within 14 days”. Thisdemand contradicted the wording of Excel’s initial PCN - issued on March 28,2013 - which clearly states that drivers have (in accordance with the timeframe set out in the BPA Code of Practice)28 days to appeal/challenge any PCN in writing. Given that Excel’s rejectionletter acknowledged receipt of the Appellant’s challenge on April 19, this wasclearly within 28 days of the PCN’s original issue.

Furthermore,Excel’s own terms and conditions of appeal state that “no additional charges” willbe incurred while challenges are “under review”. The Appellant was surprised toread therefore, that the discounted payment offer of £60 had been increased tothe full charge of £100, beforebeing given the opportunity to take the appeal to POPLA. A subsequent phonecall from the Appellant (at significant cost) to Excel’s Central Payment Officeuncovered that an administrative error had been made. The Appellant asked thatthis error be put in writing, but at the date of this appeal, no correspondencecarrying the promised correction had been received.



Notwithstandingthe administrative error as stated above, the BPA Code of Practice recommends itsmembers allow “at least 35 days” for payment to be collected from the date thechallenge was rejected. Excel is demanding payment of £100 by June 21, some 28days after the rejection letter, dated 24th May, 2013. Indeed, although the rejection letter wasdated 24th May, 2013, it was not received by the Appellant until 31stMay. This is yet another breach of the BPA Code of Practice, which states at22.6: “You must acknowledge or reply to the challenge within 14 daysof receiving it. If at first you only acknowledge the challenge, you mustaccept or reject the challenge in
writing within 35 days of receiving it. We may require you toshow that you are keeping to these targets.” Given that excel’s letter is dated24thMay (exactly 35 days after the Appellant’s challenge) and was deliveredvia post, the adjudicator will recognise that the Appellant did not receivethis correspondence until after the recommended time frame.

The Appellant respectfullysubmits that Excel Parking have not only displayed a fragrant disregard for theprocedures of its own regulatory body, but as mentioned in the points above, hasfailed to provide evidence of any proprietary interest in the land it purportsto manage, nor evidence it can produce contracts that are legally binding fordrivers that park there. Further to this the parking charges requested are, asset out above, exorbitantly high and fail to reflect any “losses,” eitheractual or pre-estimated, on behalf of Excel Parking.


The Appellant therefore invites theAdjudicator to uphold the appeal, and to cancel the parking charge.

MerseyBoy

Sorry guys,
Above post sent with matchsticks holding eyelids apart at 2am!
It goes without saying that this is a draft, and not been formatted or spell checked.
Have taken advice to include as many points as I can think of (as suggested in other successful and pending appeals) and added some detail of my own.
Guess I justo want to know is it too long/not long enough? Do I repeat myself or all points separate and salient?
Is the "batting order" ok, or should some paras be reversed - eg putting the bit about no authority to issue PCNs first ...

Thanks again

Coupon-mad

IMHO a POPLA appeal can't be too long!! and I have more to suggest you add (although right now I am having my lunch at work so can only give you pointers).

First of all I loved this aromatic typo, made me laugh!:

Excel Parking have not only displayed a fragrant disregard

should be:

Excel Parking have not only displayed a flagrant disregard

And then I thinnk you may have missed these points (couldn't see them):

- does the Notice to Keeper specifically name Excel as the 'creditor' (search the forum to find an example paragraph if not)

- Excel's signs at the Peel Centre were specifically criticised in the Excel v Martin Cutts case. Now I think the signs were slightly amended since then but if you read the case IMHO I think the signs are no better (you can say as the registered keeper you have checked the signs since getting the 'ticket' so as to keep 'who was driving' unconfirmed of course). So make sure you quote the judge and the case as it relates to that car park and Excel's reaction was for their owner to go on record and slag off the judge (bad move!).

- From your dates it looks as though Excel should have cancelled this fake PCN at the outset (in accordance with POPLA guidelines and the requirements of the BPA Code of Practice) since it was sent way beyond the 14 days allowed for a motorist to receive a postal Notice to Keeper. See the Parking Cowboys website section on 'keeper liability' for a checklist of what Excel should have done & said and by when.


HTH

MerseyBoy

Thanks Coupon Mad,

You may remember from earlier in the thread, way back when, that I was driving a hire car at the time of the alleged contravention.

As such, it was the hire car company who go the PCN (within 14 days) and they forwarded the notice onto me. I did write to the hire company at the time to say they had no right to pass on my details (also against their code of practice) and demanded the £30 admin fee they charged be returned to me. No response to date, so I tried a charge back via the bank and am awaiting the outcome.

That being said, I may not be able to add the final two paragraphs you suggested as I believe the notice was issued within two weeks and obviously I have already admitted to being the driver in a bid to get my money back from the hire company.

Should I go ahead and send to Popla now? I've got two days before the deadline ...

Many thanks

Coupon-mad

Yes to removing the 14 days paragraph but this is Excel and you should definitely go in strong about the signage, adding in a quote from the judge in the Excel -v- Martin Cutts case (Google it, sorry if I have missed it in your appeal already but am skim-reading threads on my lunch hour). They have been so heavily criticised about their signs there and it's for them to prove they are compliant. You made a good point already about that section of the car park not having clear signs but maybe increase what you say about signage to include that court case.

nicholls78

I have been following these threads since I received my Parking charge notice on the 22nd March 2013.
On the 10th February my husband was waiting in a parking space while I nipped into Next to collect an item I had ordered through the catalogue. Unfortunately, Next took a long time to serve me and my husband waited in the car for a total of 31mins (obviously, we were not expecting to wait this long and high-in-sight we would have purchased a ticket).
As my husband was in the car we assumed that a parking attendant would have approached him if a parking ticket was necessary therefore he continued to wait.
We received our Parking Penalty notice dated 22nd March for £60, I immediately searched for advise and read these threads. I replied to the notice with an apology and explained what had happened and offered to pay the charge of a 1hr stay.
They replied on the 26th April stating that I did not comply with the T&C of parking and therefore I have until the 10th May to pay £60, if I don't pay it will go up to £100.
I decided to ignore this, I received a further Parking charge notice on 5th June for £100 which again I ignored. Today I received a letter from Roxburghe debt collection company stating I have a PCN (Parking Charge notice) for £160. Can they do this?

I couldn't afford £60 but now £160 what can I do?

waamo

Well you can start your own thread for a start, replying to several people gets confusing.

Coupon-mad

nicholls78 wrote: »

I have been following these threads since I received my Parking charge notice on the 22nd March 2013.
On the 10th February my husband was waiting in a parking space while I nipped into Next to collect an item I had ordered through the catalogue. Unfortunately, Next took a long time to serve me and my husband waited in the car for a total of 31mins (obviously, we were not expecting to wait this long and high-in-sight we would have purchased a ticket).
As my husband was in the car we assumed that a parking attendant would have approached him if a parking ticket was necessary therefore he continued to wait.
We received our Parking Penalty notice dated 22nd March for £60, I immediately searched for advise and read these threads. I replied to the notice with an apology and explained what had happened and offered to pay the charge of a 1hr stay.
They replied on the 26th April stating that I did not comply with the T&C of parking and therefore I have until the 10th May to pay £60, if I don't pay it will go up to £100.
I decided to ignore this, I received a further Parking charge notice on 5th June for £100 which again I ignored. Today I received a letter from Roxburghe debt collection company stating I have a PCN (Parking Charge notice) for £160. Can they do this?

I couldn't afford £60 but now £160 what can I do?

You could have appealed to POPLA but you missed that chance by ignoring the stage when you should have used a POPLA code (or demanded it from Excel). Too late now. Just read up on the scam. Everyone ignored fake PCNs for years and everyone gets those letters. So what's the panic, they are ONLY JUNK MAIL LETTERS!

No need to start a new thread but no more replies on this one either. Just search the forum for Roxburghe and look at the letters you will get over the coming months, and ignore. If you do ever get real small claims papers obviously start your own thread (highly unlikely). Do NOT Pay nor contact nor respond AT ALL to Roxburghe.

anything-for-nothing

Hi MerseyBoy,

I'm just wondering how you got on with your POPLA appeal?

I've just received my letter rejecting my appeal and I'm about to do my POPLA.

I'm in exactly the same boat as you at the same car park and KFC just without the hire car bit.

Cheers.

AFN