POPLA Appeal against MET

tonybaloney

Hi all, I've just registered for a bit of help with a POPLA appeal for a ticket in a Mcd's, after over staying my welcome for 19 minutes.
I posted my appeal and rejection on Pepipoo, but am running short on time for the POPLA appeal, since I was away for 2 weeks. I had a lot of help from posters at Pepipoo and I made a draft and re-tweaked it. Any advice is welcome, before I submit it:


I am challenging this notice on a number of issues. (Please see attached copy of my challenge). On the 15/07/13 I received a rejection with regards to the alleged contravention (Please see the attached copy of rejection). Attached to the rejection was the POPLA form and verification code.

I would like to appeal this notice on the following grounds:


1. Inadequate Signage

The BPA states that “Entrance signs must meet minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and follow Department for Transport guidance”. As the entry to the car park is off a dual carriageway slip road, I contend that the signs aren’t suitably placed, or the lettering of a sufficient size to be readable without taking the drivers eyes off the road at the relevant approach speed.

The car was parked in the vicinity of the disabled parking spaces, facing the restaurant. The BPA Code of Practice states in paragraph 28.8:
“So that disabled motorists can decide whether they want to use the site, there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle. Ideally this sign should be close to any parking bays set aside for disabled motorists.”
As can be seen in MET’s diagram of sign locations, there are no signs around the disabled spaces. Therefore, there wasn’t an opportunity to read the signage on the way from the car to the restaurant.

2. No Contract was Knowingly Entered and No Losses Have Been Demonstrated

As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.

As there was no contract, then at most the driver was guilty of a civil trespass. If this were the case, they may be liable to damages. Given that no ‘damage’ was done to the car park and that there are no parking charges posted in the car park, there were no losses incurred.

The BPA have stated categorically 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 be a contractual matter, and can only represent a genuine 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). If it is a true Parking Charge, then the driver will also require a VAT invoice.

3. Punitive/ Unfair/ Unreasonable Charge

In my challenge I clearly asked MET to give details of any costs which the charge covers.

They listed the following:
• Employment of parking attendants to patrol the location- There were no attendants visible in the area.
• Erection and maintenance of the site signage.
• Employment of office based administrative staff.
• Membership and other fees requiring payment in order to manage the business effectively including those paid to the BPA, DVLA and ICO.
• General costs including stationery, postage etc.
I argue that these costs are everyday costs of running their business and not costs incurred by each over-staying motorist so the parking charge does not reflect the operator’s loss. The £100 charge is also coincidentally, the maximum charge, which can be applied without having to justify it to the BPA. Paragraph 34.6 states “We would not expect this amount to be more than £100. If the charge is more than this, you must be able to justify the amount in advance”.

The charge is therefore punitive and not enforceable.

The following matters are also relevant:

The charge MET are imposing is punitive and therefore void (i.e. unenforceable). The £100 charge is arbitrary and disproportionate to any alleged breach of contract or trespass.

The £100 charge MET are imposing is an unfair term (and therefore not binding) under the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations which gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e):

‘Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.’

Furthermore, Regulation 5(1) says:

‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer’

And 5(2), which states:

‘A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’

The £100 charge MET are imposing is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:

‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

Parking is free for the first 90 minutes, therefore being issued with a £100 charge for a 19 minute overstay clearly demonstrates an unfair/punitive and unreasonable charge and is therefore unenforceable.


4. Withholding Contract to Operate

In my challenge to MET I asked them to provide me with a copy of the contract for them to operate and subsequently demonstrate they have the authority to issue PCN’s. In their rejection, they have withheld this stating that “this will be made available in the normal course and at the appropriate time should it prove necessary to pursue payments through the courts”. Membership of the Approved Operator Scheme requires the Operator to have clear authorisation from the landowner (if the Operator is not the landowner), to manage and enforce parking. As I raised the point and asked for evidence then the Operator should at the very least address it by producing such evidence they believe shows that they do have the authority. They have provided no such proof and subsequently the burden of proof now lies with the Operator.

5. Timescales following rejection of appeal.

As you can see on the rejection of my challenge MET states “Pay or, if you were not the driver of the vehicle at the time of the incident, request the driver to pay the parking charge notice at the prevailing price of £50 within 14 days of todays date. Please note after this time the Parking Charge Notice will revert to £100.”

The BPA Code Of Pactice Paragraph 22.12 also states that following an appeal rejection, they must “give the driver a reasonable amount of time to pay the charge before restarting the collection process. We recommend that you allow at least 35 days from the date you rejected the challenge.” I contend that offering less than half that time is both unreasonable and unfair and is not in keeping with the BPA Code of Practice.

6. Camera Operation and Maintenance

I respectfully request POPLA to obtain proof that the ANPR equipment has been operated and maintained correctly, in accordance with the manufacturers guidelines. Also that any data obtained has been handled correctly, in accordance with the Data Protection Act.

7.Photographic Evidence

MET were asked to provide evidence that parking restrictions were contravened. Photographs were included on the original notice of the vehicle entering and leaving. However, no further evidence was provided of the vehicle being parked for the full period stated.

I look forward to your response on this matter.

Regards

Coupon-mad

I have been away so missed your thread. But clearly you've done your homework, nice POPLA appeal.

tonybaloney

Thanks and thanks for your advice. It's all been sent off, so I'll post the response when I receive it. It's due to be considered at the beginning of October.

tonybaloney

Well here's the POPLA reply- Result::beer:
Reference xxxxxxxxxx
always quote in any communication with POPLA
xxxxxxxxxxxxx (Appellant) -v-
MET Parking Services Ltd (Operator)
The Operator issued parking charge notice number xxxxxxxxxx arising out of the presence at McDonald’s car park inxxxxxxxxxxxx, on xxxxxxx, of a vehicle with registration mark xxxxxxxxx.
The Appellant appealed against liability for the parking charge. The Assessor has considered the evidence of both parties and has
determined that the appeal be allowed.
The Assessor’s reasons are as set out.
The Operator should now cancel the parking charge notice forthwith.

Reasons for the Assessor’s Determination
At xxx on the xxxxxxx, a vehicle with registration mark xxxxxx was recorded by an Automatic Number Plate Recognition (ANPR) camera entering the car park of McDonald’s car park in xxxxxxxxxx. After 109 minutes, at xxxx, the same vehicle was recorded by the ANPR camera exiting the car park.
The operator’s case is that the terms and conditions for parking in the car park are displayed at prominent places throughout the car park, stating that the maximum free stay authorised is 90 minutes. The conditions also state that failure to comply with the terms and conditions will result in a parking charge up to £100.
The appellant made representations stating the charge is punitive/unfair/unreasonable, that no contract was knowingly entered and no losses have been demonstrated, and that there was inadequate signage on site.
Considering carefully all the evidence before, although I appreciate that the signage is clear and clearly indicates the terms and conditions for parking, the appellant has raised the issue whether the parking charge is a genuine pre-estimate of loss. The charge represents liquidated damages, which is compensation, agreed in advance; this means that the breach should represent the actual loss caused. The operator has made a reference to the loss incurred and justified the charge in relation to employment of parking attendants to patrol the location, erection and maintenance of the site signage, employment of the site signage, employment of office based administrative staff, membership and other fees, and general costs. In this case, the justification appears to be on the basis of general operating costs rather than addressing the loss actually caused as a result of staying over the maximum permitted time. As a result of this, I am not required to address the other issues raised by the appellant.
Accordingly, this appeal must be allowed.
Izla Rhawi
Assessor


Thanks to anyone who helped:T