Parking Charge - Excel Parking - Stockport Peele Centre

ITGuy90

I've added more to it.. I have shamefully copied and pasted from other appeals as.. well they were so good I couldn't possibly improve on their wording!

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RE: POPLA code: xxxxxxx

I (the REGISTERED KEEPER) am writing to you in reference to PCN ref xxxxx sent to the REGISTERED KEEPER of the vehicle xxxxxxx by Excel Parking for allegedly parking without displaying a valid ticket on xxxxxxxx

I wrote to and challenged the notice on a number of issues and recieved a rejection with regards to the alleged contravention.


I am appealing this notice on the following grounds:

1. Lack of signage / no contract / grace period
2. Lack of sufficient viable evidence
3. No clear mention of who the creditor of the parking charge is
4. Innappropriate parking charge
5. Non-compliant contract with the land owner
6. Unfair Terms

1. Lack of signage / no contract / grace period
There was no contract between Excel Parking and the driver as there is insufficient signage surrounding the Kentucky Fried Chicken (KFC) establishment to constitute a contract.
The only sign at KFC is {see attached image of sign saying KFC parking 15 minutes}. Furthermore on entering the car park, there is no legible signs which allow a driver to notice and then read safely.

2. Lack of sufficient viable evidence
The supposed evidence (photographs of the vehicle's number plate) that the vehicle was parked beyond the allotted time allowed is circumstantial at best and could have been taken at any time, anyplace and is therefore not proof of any contravention of the alleged contract with the driver of the vehicle.
I further contend that Excel Parking have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.

3. No clear mention of who the creditor of the parking charge is
Nowhere on the PCN letter did they mention who the creditor is, [therefore the parking company has not met the keeper liability requirements] and therefore keeper liability does not apply. The parking company can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As the parking company have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge.

4. Innappropriate parking charge
The demand for £100 (£60 if paid by 14 days of the letter's date) has no relation to any loss suffered by the land owner.
The PCN does not present a genuine true pre-estimation of loss and the charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. It does not represent any form of loss on their part. This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with. On this basis, it should be rejected.


The BPA code of practice states:

19.5 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.

19.6 If your parking charge is based upon a contractually
agreed sum, that charge cannot be punitive or
unreasonable

I require Excel Parking to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses.

5. Non-compliant contract with the land owner
Excel Parking do not own the car park and are assumed to be merely agents for the owner or legal occupier. In their correspondence they have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper since they do not own or have any interest or assignment of title of the land in question.

I would also request that POPLA to please check whether Excel Parking have provided a full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier (not just a signed slip of paper saying it exists or someone has witnessed it) and check that it specifically enables this Operator to pursue parking charges in their own name and through the court system. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

I do 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.


6. Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations 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) states that: "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) 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."

Guys_Dad

Good.

Now just a matter of personal taste, which you can feel free to accept or ignore.

I have just highlighted the points in your appeal that you want to emphasis to the adjudicator as action that you want the PPC to take.

Also point headings



RE: POPLA code: xxxxxxx

I (the REGISTERED KEEPER) am writing to you in reference to PCN ref xxxxx sent to the REGISTERED KEEPER of the vehicle xxxxxxx by Excel Parking for allegedly parking without displaying a valid ticket on xxxxxxxx

I wrote to and challenged the notice on a number of issues and recieved a rejection with regards to the alleged contravention.


I am appealing this notice on the following grounds:

1. Lack of signage / no contract / grace period
2. Lack of sufficient viable evidence
3. No clear mention of who the creditor of the parking charge is
4. Inappropriate parking charge
5. Non-compliant contract with the land owner
6. Unfair Terms

1. Lack of signage / no contract / grace period
There was no contract between Excel Parking and the driver as there is insufficient signage surrounding the Kentucky Fried Chicken (KFC) establishment to constitute a contract.
The only sign at KFC is {see attached image of sign saying KFC parking 15 minutes}. Furthermore on entering the car park, there is no legible signs which allow a driver to notice and then read safely.

2. Lack of sufficient viable evidence
The supposed evidence (photographs of the vehicle's number plate) that the vehicle was parked beyond the allotted time allowed is circumstantial at best and could have been taken at any time, anyplace and is therefore not proof of any contravention of the alleged contract with the driver of the vehicle.
I further contend that Excel Parking have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.

3. No clear mention of who the creditor of the parking charge is
Nowhere on the PCN letter did they mention who the creditor is, [therefore the parking company has not met the keeper liability requirements] and therefore keeper liability does not apply. The parking company can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As the parking company have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge.

4. Inappropriate parking charge
The demand for £100 (£60 if paid by 14 days of the letter's date) has no relation to any loss suffered by the land owner.
The PCN does not present a genuine true pre-estimation of loss and the charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. It does not represent any form of loss on their part. This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with. On this basis, it should be rejected.


The BPA code of practice states:

19.5 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.

19.6 If your parking charge is based upon a contractually
agreed sum, that charge cannot be punitive or
unreasonable

I require Excel Parking to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses.

5. Non-compliant contract with the land owner
Excel Parking do not own the car park and are assumed to be merely agents for the owner or legal occupier. In their correspondence they have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper since they do not own or have any interest or assignment of title of the land in question.

I require Excel Parking have provided full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier (not just a signed slip of paper saying it exists or someone has witnessed it) and request POPLA to check that it specifically enables this Operator to pursue parking charges in their own name and through the court system.I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

I do 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 servinot just a signed slip of paper saying it exists or someone has witnesseces, 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.


6. Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations 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) states that: "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) 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 bits in red are, in my view, either superfluous or confusing, and I would leave them out.

You need a final para asking POPLA to grant your appeal.

ITGuy90

Will those formatted sections appear on their web page?

What's the best way to word the final paragraph without sounding like I'm begging (or being aggressive)?

Has this got a good chance of winning or do I need to add more? I saw something on one of the other threads about the time it takes to get fast food and find a space etc.. was thinking this could be useful but I'm not sure where to include it.

bondy_lad

good luck it guy,but ime just waiting for their threat o grams to stop,then i will see them in court,but love your dertimination in stuffing them now.they still scam people at the peel centre,but no doubt will point to their new signs as a get out,but that doesnt help the 11,500 folk they have attempted or in fact scammed over the past few years,just a foot note they patrolled the co-op car park in nearby marple,they got the bullit there as were ticketing uncle tom cobley and all,soon the co-op nearly had no customers left til they got the boot right up where the sun dont shine.

ITGuy90

bondy_lad wrote: »

good luck it guy,but ime just waiting for their threat o grams to stop,then i will see them in court,but love your dertimination in stuffing them now.they still scam people at the peel centre,but no doubt will point to their new signs as a get out,but that doesnt help the 11,500 folk they have attempted or in fact scammed over the past few years,just a foot note they patrolled the co-op car park in nearby marple,they got the bullit there as were ticketing uncle tom cobley and all,soon the co-op nearly had no customers left til they got the boot right up where the sun dont shine.

Well I refuse to be bullied into paying for something that they've just invented. It's disgusting that they can get away with this, but hopefully with enough people refusing they can't.

Guys_Dad

When you submit it, I would send a hard copy as well. Their web site has cut off appeals mid way through and the adjudicator only deals with what is in front of them.

Send it 2nd class, with the POPLA ref on each page and get a certificate of posting.

ITGuy90

Been busy this week, hopefully not too late.
I've taken out the red bits and added a final statement, is this likely to win?

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RE: POPLA code: xxxxxxx

I (the REGISTERED KEEPER) am writing to you in reference to PCN ref xxxxx sent to the REGISTERED KEEPER of the vehicle xxxxxxx by Excel Parking for allegedly parking without displaying a valid ticket on xxxxxxxx

I wrote to and challenged the notice on a number of issues and recieved a rejection with regards to the alleged contravention.


I am appealing this notice on the following grounds:

1. Lack of signage / no contract / grace period
2. Lack of sufficient viable evidence
3. No clear mention of who the creditor of the parking charge is
4. Inappropriate parking charge
5. Non-compliant contract with the land owner
6. Unfair Terms

1. Lack of signage / no contract / grace period
There was no contract between Excel Parking and the driver as there is insufficient signage surrounding the Kentucky Fried Chicken (KFC) establishment to constitute a contract.
The only sign at KFC is {see attached image of sign saying KFC parking 15 minutes}. Furthermore on entering the car park, there is no legible signs which allow a driver to notice and then read safely.

2. Lack of sufficient viable evidence
The supposed evidence (photographs of the vehicle's number plate) that the vehicle was parked beyond the allotted time allowed is circumstantial at best and could have been taken at any time, anyplace and is therefore not proof of any contravention of the alleged contract with the driver of the vehicle.
I further contend that Excel Parking have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.

3. No clear mention of who the creditor of the parking charge is
Nowhere on the PCN letter did they mention who the creditor is, [therefore the parking company has not met the keeper liability requirements] and therefore keeper liability does not apply. The parking company can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As the parking company have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge.

4. Inappropriate parking charge
The demand for £100 has no relation to any loss suffered by the land owner.
The PCN does not present a genuine true pre-estimation of loss and the charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. It does not represent any form of loss on their part. This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with. On this basis, it should be rejected.


The BPA code of practice states:

19.5 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.

19.6 If your parking charge is based upon a contractually
agreed sum, that charge cannot be punitive or
unreasonable

I require Excel Parking to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses.

5. Non-compliant contract with the land owner
Excel Parking do not own the car park and are assumed to be merely agents for the owner or legal occupier. In their correspondence they have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper since they do not own or have any interest or assignment of title of the land in question.

I require Excel Parking have provided full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier (not just a signed slip of paper saying it exists or someone has witnessed it) and request POPLA to check that it specifically enables this Operator to pursue parking charges in their own name and through the court system.

I do 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 servinot just a signed slip of paper saying it exists or someone has witnesseces, 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.


6. Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations 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) states that: "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) 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."


In conclusion to the above points, this parking charge notice is invalid and the appeal upheld.

Coupon-mad

Yep I would submit that this week, see if others add anything else tomorrow.

ITGuy90

Hi,
I received an email with "evidence" from Excel in it.

One of the images shows the KFC sign I already posted which only says about the 15 minutes, another is a wide shot showing the KFC area without any signs in. But the remainder of the images are of other areas of the Peele Centre, not near KFC, with its P&D machines.

Are POPLA likely to be fooled by these out of context pictures?

Guys_Dad

Maybe, but as long as you have a strong GPEOL, that trumps dodgy photos.

You are, of course, able to respond to POPLA with any photos of your own that show the PPC was cherrypicking.