Excel parking Peel Centre nightmare please help!

C_Mababejive

Park in Big Tesco in future. Its free for upto 3 hours. And boycott those shops served by the Excel car park if possible.

munchies2013

Hi

I usually do park in other places that don't trick you but on that fateful day I selfishly decided to be lazy and park closer as I was not planning on staying so I have landed myself in this mess!

Anyways I am back here to confirm that I have finally received another letter obviously rejecting my appeal - can I add that I sent the 're-appeal' on 09/08/13 and then the letter dated 13/09/13 arrived today 16/09/13 - if my calculations are correct does this not place them outside the 35 day window? would they have an excuse for this?

Anyway should they still have a leg to stand on I am now with POPLA code so I can hopefully appeal and win and I would really appreciate any advice at this stage to get this out the way and done and dusted.

Also I have checked out the thread as suggested by coupon-mad but I am unsure what to do with that as I e-mailed [EMAIL="cpo@excelparking.co.uk"]cpo@excelparking.co.uk[/EMAIL], [EMAIL="asos@britishparking.co.uk"]asos@britishparking.co.uk[/EMAIL] and [EMAIL="foi@dvla.gsi.gov.uk"]foi@dvla.gsi.gov.uk[/EMAIL] honestly I am not sure who was right/wrong but they are saying that excel were compliant in this case so I did not know what else to go back with so I left it. - not sure if that was the right thing to do.

I am now all ears and if anyone can help me with this appeal I would really appreciate it!

thanks again

Coupon-mad

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

HTH

munchies2013

Hi again,

so as I am strapped for time I have cheekily copied and pasted from other people's POPLA appeals after a bit of searching and researching on the net. I have found some bits and pieces and I was wondering what to do next?

do I just post the POPLA appeal on here and let you guys work your magic on to make it a bit more POPLA worthy or PM it to someone to have a read?

I have tried to 'give it a go' as they say but I am afraid my knowledge in this is not as deep as you guys on here! I have tried to put in some bits of info but I read that it was best not to go into detail as to what happened that day so you don't sound 'whiny' and also to be more factual and hopefully I have managed to pull that off without sounding silly....

please advise and I will post what I have so far as I would really like to see the back of this believe me!!

thanks guys

kirkbyinfurnesslad_2

Just post it up

munchies2013

Hi guys,

so I have mocked up an appeal of sorts, bit of a mash up of points I found from other POPLA appeals as well as some of my the personal circumstances for this particular incident.

pointers very much welcome, I will happily take advice on how to re-write/re-word/re-structure. Again going in blind here so any help appreciated. here goes - hopefully it has the right stuff in it!


(Appellant name and address)



And



ExcelParking Services Ltd
(Respondent)

DATE


Dear Sir/Madam,



Inthe matter of an Appeal against a Parking Charge Notice to POPLA



POPLACode number: XXXXXXXXXX





RelevantDocuments

1.Parking Charge Notice served by Excel Parking Services Ltd to the registeredkeeper (attached).

2.My appeal(s) to Excel Parking Services Ltd against the parking charge(attached).

3.Letter from Excel Parking Services Ltd rejecting my appeal (attached).

4.BPA Ltd Code of Practice (not attached)





A.Alleged Infringement

TheRespondent alleges that, , the driver of a vehicle registrationnumber XXXXXX, of which the Appellant is the Registered Keeper, was parked inbreach of the terms and conditions and as such a Parking Charge is due. AParking Charge Notice (PCN) with the identity XXXXXXXXX, dated on received by the Keeper on days after the event. After appealingthe alleged charge on the Appellant received days later to advise that the driver needs to get in contact andhe/she could not appeal on the registered keeper or driver’s behalf. TheAppellant then appealed again on and received correspondence days after the appeal ( days ifusing the dates of correspondence). It was the latter appeal that a POPLAverification code was provided after the appeal was rejected. This, however, wasnot within the stated 35 day appeal window.



B.Protection of Freedoms Act 2012 (the Act)

Inorder for any parking company to pursue keeper liability under the Protectionof Freedoms Act 2012 (the Act) that parking company must have met theconditions in the Act. The conditions are set out in the sub paragraphs of theparagraphs in Schedule 4 of the Act. Excel Parking Services Ltd uses ANPR forits enforcement, in which case the relevant conditions that it must meet arethose in paragraph 9. That is to say, the whole of paragraph 9 as is evidentfrom its introduction which reads “(2) The Noticemust…specify…inform…..describe…state that …warn…identify”. All of which aremandatory requirements. The Respondent included in its Notice a statement thatit was the “Creditor” as required by paragraph (9)(2)(h) of Schedule 4 of theAct. Whilst they have named themselves as the Creditor they have providednothing to legally substantiate that claim. It is well known in the area thatthe Respondent has previously indicated that the calculation of the parkingcharge is based on an average ‘loss’ to the various retail units at the retailpark, therefore

thoseretail outlets would be the actual creditor. It is also known that in recentappeals considered by POPLA, the Respondent has failed to provide any evidencethat it is the “creditor” entitled to recover monies from a driver.



Any contractual charge for an alleged contractualcontravention is solely between the parties to that contract, ie yourselves, ifyou have power to offer a parking contract for the use of land not belonging toyou, and the driver of the car.

A 3rd party cannot be held responsible for any contractual matter entered intoby someone else.

I refer you to the Parliamentary Notes on the applications and implications of Protectionof Freedoms Act 2012 (the Act) where section 207 gives clear notice that “Thecreditor may not make a claim against the keeper of a vehicle for more than theamount of the unpaid parking related charges as they stood when the notice tothe driver was issued.” The contractual charge is not a parking charge in thenormal sense of the word but is a penalty for non compliance with some specificrequirement for the use of a car park. It is not in respect of unpaid parkingrelated charges as they stood when the notice to the driver was issued. Such acharge doesn't confer upon me any rights to take advantage of the same parkingcontract as was supposedly entered into by the driver, since they were for abreach rather than consideration of a service for parking.

The passage of contractual obligations to the keeper is sufficiently explainedin the example above from the Parliamentary Explanations to Protection ofFreedoms Act 2012 (the Act), particularly that the charges are for unpaidPARKING RELATED charges, not



Section 205 also underlines the basis of charging a keeper under a contractualarrangement, “Whilst the landowner (or his or her agent) may seek to recoverunpaid parking charges from the vehicle keeper, as the law is currentlyunderstood to stand, any parking contract will be between the driver of avehicle and the parking provider and accordingly the keeper may not be liablefor the charges incurred if he or she was not the driver.”

As no contract was made between the creditor and the keeper there can be noright to pass on a contractual charge to a keeper who was not party to thecontract. This would also be confirmed by consideration of the Unfair terms inConsumer Contracts Act.

Since the pre PCN parking charge was nil then please complete your actions bycancelling any charge passed to myself as the registered keeper which hasobviously been added after the notice to driver was issued and not prior to it.






C.Signage at site

Thesignage states that a parking charge notice would be issued for a ‘failure tocomply’ with the terms of parking. This wording clearly indicates that theparking charge represents damages for a breach of the parking contract.Accordingly, the parking charge must be a genuine pre-estimate of loss. ExcelParking Services Ltd claims that its charges are in line with the BPA Ltd Codeof Practice (CoP). Whilst the BPA Ltd CoP states that operator must justify inadvance any parking charge over £100, it does not automatically follow that anycharge which is £100 or under is justified. The respondent, Excel ParkingServices Ltd, also claims that its charges have been held to be enforceable inother cases but has failed to produce any reasonable evidence to justify thisparticular parking charge. Losses caused by breaches of a parking contract mayvary depending on the nature of the breach and the car park. The fact that aparking charge at a certain level is held not to be a penalty in one car parkdoes not mean that the same sum is a pre-estimate of loss caused in every carpark. It is my assertion that the parking charge is punitive and anunenforceable penalty and the Respondent has not provided any evidence as tohow and why this parking charge is a genuine pre-estimate of loss. It is notsufficient to simply list the names of previous cases without applying them tothis case.



C.1Unclear & non-compliant signage forming no contract with drivers

Thesignage failed to comply with the BPA Code of Practice, and that entrancesignage is not readable by the driver of a moving vehicle as he enters the landcannot bind that driver into a contract.

Excel Parking Services Ltd have very recently changed the signs at this site. Ibelieve the signage is now different to when I received the PCN. The previoussigns were not compliant and I assume that is why they were changed. (If they wereok, why were they changed?) I believe the signs and any core parking termsExcel Parking Services Ltd are relying upon were too high and too small for anydriver to see, read or understand when driving into this car park. The Operatorneeds to show evidence of the old signage map/photos on this point -specifically showing the height of the signs and where they were at theentrance, whether a driver still in a car could see and read them when decidingto drive in. Any terms displayed, do not alter the contract which must be shownin full at the entrance.

Prior to the new signs going in I believe the signs failed to properly andclearly warn/inform the driver of the terms in this car park and anyconsequences for breach, as was found in the same car park in the case of ExcelParking Services Ltd v Martin Cutts, 2011.



ExcelParking Services Ltd needs to prove that I actually saw, read and accepted theterms, which means that I and the POPLA adjudicator would be led to believethat a conscious decision was made by me to park in exchange for paying theextortionate fixed amount the Operator is now demanding.

The idea that any driver would accept these terms knowingly is perverse andbeyond credibility. This is not a fair ‘contract’ nor a contract at all.

So in addition, because the signs failed to properly inform drivers of the fullterms & conditions in a very prominent place at a low enough height at theentrance, the elements of a contract have not been met. Any alleged contractwould be formed at the entrance to the premises, prior to parking. It is notformed after the vehicle has already been parked, as this is too late.

Excel Parking Services Ltd did not provide signage of sufficient written textsize or at a suitable height to be read from the vehicle at the entrance or atany location on the premises. They may claim that generic signage was displayedaround the car park on poles but this did not meet the requirements forconsideration when forming the alleged contract and probably why the signs haverecently been changed.



D.No breach of the advertised terms and conditions

Thesignage upon which the Respondent wishes to rely fails to meet the standardrequired by Regulation 7 of the Unfair Terms in Consumer Contracts Regulations1999 and as such it cannot be relied upon to demand a Parking Charge. TheAppellant would Invite POPLA to read the sign and consider just whatinfringement actually causes a “Parking Charge” liability to arise? The signstates that “Failure to comply with the following will result in a parkingcharge.” It then lists six acts that must be undertaken for that charge toarise”. If the Respondent wishes to rely on just one of those acts to impose aParking Charge then the sign should say “Failure to comply with any one of thefollowing will result in a parking charge.” POPLA will be aware that if thereis any doubt as to the written terms of a contract then their interpretationwill be one that is “most favourable to the consumer” under those Regulationscontract. On that basis, even if the vehicle had been parked for more than thestipulated time no liability arises. Accordingly, the Appellant would requestthat this appeal is supported.



E.Entering, Parking and Exiting for ANPR

TheRespondent uses ANPR camera’s at the entrance/exit of the retail park. Thecameras only record the time that a vehicle enters the car park and when itleaves, they do not record the actual parking event nor the point at which thecontract to park is entered into. There are five separate actions involved herethat relate to the parking event.

1.Driving into the car park. (Entry time recorded on ANPR).

2.Parking the car in an empty parking space.

3.Reading the terms and conditions of parking offered at the retail park.

4.Acceptance of those terms and conditions by remaining at the car park.

5.Driving out of the parking space.

6.Driving out of the retail park. (Exit time recorded on ANPR).

Thetimes of the actual ‘parking under contract’ event therefore differsignificantly from the entry and exit times recorded by the ANPR cameras.Furthermore, the ANPR system takes no account of the regular problems ineffecting a speedy departure due to the road layout and exit onto the highway. Thereare frequent tail backs and it is not uncommon for a motorist to wait some 20minutes to leave, during which time, when not parked but waiting to get outtime soon ticks away until one is at the front of the queue and the ANPR cameracaptures the exit image.

TheBPA Ltd Code of Practice requires that parking operators can only rely on ANPRevidence if it does so in a reasonable, consistent and transparent manner. Thusthe Respondent has failed to recognise that it takes time to get in, find aspace, consider the terms and conditions and then eventually to leave. TheRespondent’s claim for a parking charge for an alleged overstay based solely ofthe entry and exit times recorded by ANPR cameras is therefore fatally flawedand cannot be relied upon, on a balance of probabilities, to prove its case.



TheBPA code of practice contains the following:



21Automatic number plate recognition (ANPR)

21.1 You may use ANPR camera technology to manage, control and enforceparking in private car parks, as long as you do this in a reasonable,consistent and transparent manner. Your signs at the car park must tell driversthat you are using this technology and what you will use the data captured byANPR cameras for.

21.2 Quality checks: before you issue a parking charge notice you must carryout a manual quality check of the ANPR images to reduce errors and make surethat it is appropriate to take action. Full details of the items you shouldcheck are listed in the Operators’ Handbook.

21.3 You must keep any ANPR equipment you use in your car parks in goodworking order. You need to make sure the data you are collecting is accurate,securely held and cannot be tampered with. The processes that you use to manageyour ANPR system may be audited by our compliance team or our agents.

21.4 It is also a condition of the Code that, if you receive and processvehicle or registered keeper data, you must:

• be registered with the Information Commissioner

• keep to the Data Protection Act

• follow the DVLA requirements concerning the data

• follow the guidelines from the Information Commissioner’s Office on theuse of CCTV and ANPR cameras, and on keeping and sharing personal data such asvehicle registration marks.

21.5 If you want to make use of the Keeper Liability provisions in Schedule4 of POFA 2012 and you have not issued and delivered a parking charge notice tothe driver in the car park where the parking event took place, your Notice toKeeper must meet the strict requirements and timetable set out in the Schedule(in particular paragraph 9).

The Appellant has seen no evidence that Excel Parking Services Ltd havecomplied with these BPA Code requirements for ANPR issued tickets so requirethem to evidence their compliance to POPLA.


F. No contractual authority

TheRespondent has not provided me with any evidence that it is lawfully entitledto demand money from the driver. That is to say, that it has the necessarylegal capacity to enter into a contract with a driver of a vehicle parking inthe car park, it is the properly appointed agent of the landowner or has beenproperly authorised by the landowner to recover unpaid parking charges from adriver. Accordingly, the Respondent should be required to provide a copy (toboth POPLA and myself) of;

1.Its contract with the owner of the land on which the car park is situated

2.Evidence of the land ownership of the party with whom the Respondent hascontracted

3.A “Purchase Order” incorporating this car park into that contract in the eventthat that contract is a framework agreement within, say, the next fourteendays. In the alternative, if the Respondent is the owner of the land then itshould evidence that ownership within the same time period. If the Respondentis unable or unwilling to do so, then it should not be permitted to offer anyevidence in this appeal. The Appellant reserves the right to provide furtherrepresentations in this appeal upon considering

theevidence that has been requested. It is submitted that without such evidencethe Appellants’ position is prejudiced by being unable to properly challengethe Respondents’ position. POPLA is operated by the London Councils under acontract it has with the BPA. As such it will be governed by the Human RightsAct, and in particular Article 6. That article requires that an Appellant musthave a real opportunity to present his or her case or challenge the caseagainst them. This will

requireaccess to a Respondents’ submissions, procedural equality, and generallyrequires access to evidence relied on by the other party.



G.The Appeal

TheRespondent is in breach of the statutory requirements of Schedule 4, Protectionof Freedoms Act 2012 and therefore cannot recover the alleged parking chargefrom the Appellant, as the registered keeper, and I therefore have no liabilityfor the parking charge. The parking charge is punitive. It does not represent agenuine pre-estimate of liquidated damages and is therefore an unlawful penaltycharge. The Respondent has produced insufficient evidence that my car wasparked in breach of the stated terms and conditions. The Respondent does nothave the necessary contractual authority from the landowner to pursue thisparking charge. I respectfully request that this appeal be allowed. In theevent that POPLA is minded not to grant the appeal then, because the Respondentfailed to provide any evidence of its entitlement to recover parking chargesuntil this stage, it is requested that it be ordered that the Respondent be notallowed to recover any more than the originally claimed sum.


Appellant received a response from Excel Parking Services Ltdrejecting the appeal on the grounds they were not the driver of the vehicle.The Respondent stated that the responsibility of the PCN lies with the driverof the vehicle at the time the parking contravention was observed. TheRespondent also stated that it was evident I was not the driver of the vehicleand therefore they would be unable to process my representations for thatreason. The Appellant was subsequently asked to either:



1. Providethe full name and address of the driver so the Appellant could appeal on theirbehalf

2. Notifythe driver to contact Excel Parking Services Ltd to appeal directly

3. Paythe PCN



Appellant again appealed direct to the Respondent for a POPLAverification code and so n , the Appellant received a secondresponse from Excel Parking Services Ltd acknowledging the . However as previously stated the timing of the letter was out ofthe 35 day window in which a POPLA verification code has to be issued to theAppellant.



continued in next post....

munchies2013

The letter said Excel Parking Services Ltd were satisfied that the PCN was issued correctly for a “breach of terms and conditions” and that the appeal be rejected on the grounds that a valid ticket be required for what is a “Pay and Display Car Park”. Upon rejecting the Appellant’s case, Excel Parking Services Ltd then demanded full payment of the PCN totalling £100, for “failure to appeal/pay the PCN within 14 days”. This demand contradicted the wording of Excel’s initial PCN -- which clearly states that drivers have (in accordance with the time frame set out in the BPA Code of Practice) 28 days to appeal/challenge any PCN in writing. Given that Excel Parking Services Ltd’s rejection letter acknowledged receipt of the Appellant’s challenge this was clearly within 28 days appeal window.

Furthermore, Excel Parking Services Ltd’s own terms and conditions of appeal state that “no additional charges” will be incurred while challenges are “under review”. The Appellant was surprised to read therefore, that the discounted payment offer of £60 had been increased to the full charge of £100, before being given the opportunity to take the appeal to POPLA. It was only after the latter appeal letter that again the discounted charge was applied in lieu of the new challenge, but again a contradiction nonetheless.



Given that the duration of stay , and the tariff set by the operator for a 1-2 hour stay was just £1 before the signage change (see appendix 1 for new signage taken after the incident), then the amount of the “penalty” imposed is disproportionate to any alleged “loss” by Excel Parking Services Ltd, and is therefore punitive, contravening the Unfair Contract Terms Act 1997. Furthermore, the Department for Transport guidelines state, (in Section 16 Frequently Asked Questions), that: “charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."

In this case, when requested by the Appellant, Excel Parking Services Ltd failed to provide 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 genuine pre-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 Parking Services Ltd, using the maximum suggested penalty available to private parking operators as set out in the BPA Code of practice.

Indeed, the BPA code of practice is deliberately obscure on the definition of the amount their members should charge in these circumstances. In one paragraph it states charges should be “reasonable and reflect the loss incurred”, then in another paragraph it 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 of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.” It goes on to say, “If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.” Since the cost , how can a charge of 100 times that be considered as non punitive or reasonable? The Appellant invites the adjudicator to calculate this in his/her consideration.

Indeed, it is from the Appellant’s position that Excel Parking Services Ltd has suffered no loss as they are unable to claim trespass in their own name. If they claim to be acting on behalf of their client they have not shown that to be the case since 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 burden of proof shifts to the Operator to prove otherwise.



Yours Faithfully,



Appellant name (registered keeper name)



- so how have I done? is this a big mess? the spacing has gone a bit weird after pasting into the post but any advice very much appreciated I want to get this sent off this week if it's good enough to have a chance at winning!

kirkbyinfurnesslad_2

Looks fine to me

munchies2013

@kirkbyinfurnesslad - really? I am shocked! if I just add all the missing info bits am I all set to send this in to POPLA? The fact of the matter is that this is all ok and the POPLA assessor won't find any flaws with it - hopefully none that will make it enough to lose the appeal!

I will be sending this in the post as well as via e-mail on the POPLA website. I have really clear close up photo's of the signage now. I mention that the signage recently changed. I took this from another post on this forum as a guy got a ticket about a day or so after or before I got this (so I am assuming the same signage point applies to me) I did try and find a date to when the new signage and charges were updated at the car park but no luck!

Apologies if I sound like I am repeating myself, obviously this is new to me and your knowledge is a million times better than mine when it comes to this as you have experience in these dealings!

if I am good to go without the need for further amendments then I will send tomorrow all being well that is!

thanks again

pearl_rose

Hi,
I NEED HELP:)
I would like to ask regarding the parking charge notice I received from Premier Park. I'm a new driver and just bought a car. I parked it infront of our garage but apparently the agency didn't give us the key. I thought it's okey to park in there because I didn't do any obstraction to other vehicles but I received this parking charge notice. I wrote to them but was been refused. I re appealed to them and they gave me popla reference number to appeal to popla. The parking charge is £100 but if I will pay it now it will be £60. Accordingly I will loose the discounted amount if I insist to appeal to popla and loose my case. I need an advice what is the best thing I should do. Your help is very much appreciated. Thanks!