Ticket from Excel - advice please

phy7tes

Thanks for this Guys Dad. I'll send my response along these lines and post back what happens next!

Stroma

phy7tes wrote: »

Interesting, version 2 22.8 is briefer then the current one. It simply says that they must accept or reject the appeal within 35 days.

Are you interpreting their latest response to me as neither acceptance or rejection?

Yes ensure you quote to them that as the parking event happened before June 20th it goes under version 2 of the code of practice, the latest version does not apply no matter what they say. So add into anything you say to them

phy7tes

Hi,

I've received a letter from Excel dated 19th September explicitly rejecting my appeal sent on 15th August. Note, this refers to the second letter I sent them which quoted the relevant points from the BPA COP. My initial letter was sent on July 7th.

In their letter they offer me the change to appeal via POPLA, they have included the POPLA appeal information including the POPLA appeal form which has various reference numbers on it.

What angle should I take in returning the appeal form? Is my main point that Excel have fallen outside of the dates of the BPA COP for responding or some other reason?

Thanks in advance.

Umkomaas

If you've had this since just after 19th September you need to get your skates on with that POPLA appeal. You have 28 days from the date on the letter to appeal - miss it and that's your lot, no second chance. It's the one golden opportunity to get this charge cancelled.

You need to look over recent POPLA wins, look at the appeal points that have scored success.

Key ones are:

1. No genuine pre-estimate of losses - the killer at the moment, no POPLA appeal should be without one of these!
2. Signage not complying with the BPA CoP
3. Contract between landowner/retailer (or whoever) and the PPC - ask POPLA to put the PPC to strict proof to produce an unredacted and contemporaneous copy of the contract (they most likely can't or won't, and you'll win).
4. No proprietary interest in the land, so therefore unable to enter a contract with the motorist
5. The charge is punitive and therefore a penalty and therefore unenforceable

as well as any deficiency in them meeting PoFA and/or any other CoP requirements.

Read the POPLA Decisions sticky here (especially those decisions from the past couple of months)

https://forums.moneysavingexpert.com/discussion/4488337

Draft your appeal - use copy and paste from others - but make sure you understand the points, that they relate to your circumstances and flex them a bit to suit and fit with your writing style, particularly if you're going to pick and mix from different posts. Post up a copy here and we'll help you fine tune it.

Final point - don't do this alone ........ and get your @rse in gear

Coupon-mad

https://forums.moneysavingexpert.com/discussion/comment/62180281#Comment_62180281

Link above shows what to include in a POPLA appeal. Bear in mind the 28 day clock started ticking 3 weeks ago at least!

phy7tes

Thanks for the tips, skates are on!! Here is my draft appeal to POPLA, feedback much appreciated.

Dear POPLA Adjudicator

Re: Excel PCN: XXXXXX, POPLA Code: XXXXXXXX

On XXth June 2013, Excel Parking Services issued a parking charge notice of £100 for an alleged incident on Xth June 2013. !I appeal on the grounds that I am not liable for the parking charge for the following reasons:

The charge is a penalty and not a genuine pre-estimate of loss
Questions over the proprietary interest of Excel parking Services in the land at XXXXXX.
Excel Parking Services are in breach of!22.8 of Version 2 of the BPA AOS Code of Practice.

The charge is a penalty and not a genuine pre-estimate of loss

The £100 charge asked for, far exceeds the cost to the landowner who would have charged me £5 for the time my car was parked there. The £95 difference between the parking charge and the parking charge notice cannot be construed as anything but a punitive penalty. In the appeal Excel Parking Services did not address this issue, and has not stated why they feel a £100 charge is an appropriate pre-estimate of loss. For this charge to be justified a full breakdown of the costs Excel Parking Services has suffered as a result of the car being parked at the car park is required and should add up to £100. Normal expenditure the company incurs to carry on their business (e.g. provision of parking, parking enforcement or signage erection) should not be included in the breakdown, as these operational costs would have been suffered irrespective of the car being parked at that car park.

On the date of the claimed loss it was at less than 1% (almost empty) capacity and there was no physical damage caused. There can have been no loss arising from this incident



Proprietary Interest

The appellant does not believe that the operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give Excel Parking Services any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, Excel Parking Services lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge

The appellant believes there is no contract with the landowner/occupier that entitles them to levy these charges and therefore has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to Excel Parking Services. The appellant expects Excel Parking Services to prove that they are not in breach of section 7.1 of the BPA code.

The appellant does 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, or indeed the legal standing to allege a breach of contract. I refer 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.!

Breach of!22.8 of Version 2 of the BPA!AOS Code of Practice

Point 22.8 of Version 2 of the BPA AOS Code of Practice states:
You must acknowledge or reply to the challenge within 14 days of receiving it. If at first you only acknowledge the challenge, you must accept or reject the challenge in writing within 35 days of receiving it. We may require you to show that you are keeping to these targets.

My initial challenge was sent on July Xth (see attached) and acknowledged by Excel Parking Services (via email) on the same day. !The next correspondence received from Excel Parking Services was on August Xth (see attached) and was neither an acceptance or rejection of my initial challenge. !I sent a response back to Excel Parking Services on August XXth (see attached) which pointed out that they were outside of the 35 days since the initial challenge sent on July Xth. !On September XXth Excel Parking Services did send a rejection to my appeal (see attached), they state that my appeal was sent on August XXth, in fact the initial challenge was sent on July Xth.

In summary, my initial appeal was sent on July Xth and the rejection was received on September XXth. !This is well in excess of the 35 days required by point 22.8 of the BPA AOS Code of Practice Version 2.

Coupon-mad

The appellant believes there is no contract with the landowner/occupier that
entitles them to levy these charges and therefore has no authority to issue
parking charge notices (PCNs).

Maybe expand that to reflect what the CoP says the contract must have:

''The appellant believes there is no contract with the landowner/occupier that entitles them to levy these charges and to pursue them in their own name as creditor, in the courts. Therefore Excel has no relevant authority to issue parking charge notices (PCNs) at this site.''

And if this was ANPR issued I would always call into question their ANPR checks (BPA CoP again) and their signage (same). See the examples here, some of which have those paragraphs:

https://forums.moneysavingexpert.com/discussion/comment/62180281#Comment_62180281

Was the first PCN posted so it arrived within 14 days of the incident (or was it a windscreen PCN)?