New ParkingEye ticket

collingbone614

I recently had my very first "love letter" from ParkingEye. I got some advice from a friend who successfully fought one from them last month. PE allege that I overstayed at the (free) car park.

I plan to fight it using the info from this forum and the PePiPoo forum. I've sent them my first letter stating that I appeal and object to the charge, given that it's excessive, not a genuine pre-estimate of loss etc. I wrote that I want them to send me a POPLA code if they don't accept my appeal. I'm now waiting for this.

So, going through the process, my next step will be to send my info to POPLA. I am planning to appeal under the following grounds. Some of the points will need fleshing out. Point (6) is a long one, do people think it's worth keeping in or does it waffle too much? Am I overcomplicating? Am I missing anything big? I have been through the letter and couldn't find anything else to pick at.

I've highlighted the main points in bold.

(1). The land on which ParkingEye Limited operates is not land that it owns itself. I refer you to VCS v HMRC 2012 where it was found that without landowner rights of possession or occupation they cannot make a contract with a driver using the facility. I do not believe ParkingEye has any such authority and put them to proof of that specific point.

(2). No contract was made between the driver and ParkingEye Ltd: to form a contract, given that they may not have rights to do so in any case, they would need to fulfil the law of contract. This would require the passage of goods or services from ParkingEye Limited to the driver in return for payment. No goods or services were offered or even negotiated. Unless ParkingEye limited can show what goods or services were offered then the law of contract should be found to have not been satisfied.

(3). Given that the area shown in relation of this charge does not have a payment option within it, or for the use of the land and roads surrounding it, then any charge at all would be grossly exorbitant and far exceed any potential landowner loss suffered. The charge exceeds the appropriate amount, ie £nil.

(4) No evidence of parking time. ParkingEye Ltd are relying on pictures taken of a vehicle at first arrival and then when leaving (not showing any evidence at all of actual parking time). So, there is no evidence to indicate that my vehicle was parked for more than the arbitrary time limit the Operator is relying upon and no breach of contract by the driver can be demonstrated by their evidence at all. On that basis the sum claimed fails to meet the standards set out in paragraph 19 of the BPA Code of Practice.

(5) Signage issues. Their signage fails to state that their cameras are used to obtain evidence which may be used to issue enforcement notices. The signs neglect to mention what the data will be used for. This is a clear and unambiguous breach of The BPA code: B6.1 (2011 Code of Practice) & 21.1 (2012 code of Practice). (I will update this for the most recent edition.)

"You may use ANPR camera technology to manage,
control and enforce parking 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 drivers that
you are using this technology and what you will use the
data captured by ANPR cameras for."

[I will enclose photos of signs.]

(6) VAT not mentioned on the invoice.
The invoice presented to myself by ParkingEye Ltd did not have any mention of VAT upon it. It is a legal requirement for any invoice to have this detail, where the issuing company has a VAT registration. Since ParkingEye Limited claim that this matter is being dealt with as a one of contract, ie for a service, that makes the payment VAT-able in accordance with current legislation, and in confirmation of the findings in the case against another parking management company, by HMRC (VCS v HMRC). If it has no mention of VAT upon it, then it must relate to a penalty, which of course is not in accordance with the BPA Code of Practice and cannot be independently pursued as a contractual charge. I refer to the addendum at the bottom of the page direct from HMRC which explains this situation.

I put it to ParkingEye Ltd to prove that the action is for a breach of contract where I will need confirmation and proof of payment of VAT in respect of these tickets, or whether in fact it is an amount of penalty for non compliance with some condition of landowner facility use.

ADDENDUM:
REVENUE & CUSTOMS BRIEF 57/08 VAT – Excess charges in non-local authority car parks. The Brief explains HMRC’s revised policy on excess charges and other penalties levied in non-local authority car parks. Following the Bristol City Council case, HMRC accepted that excess charges made in local authority car parks were outside the scope of VAT. However this treatment was only in respect of local authorities. HMRC have reconsidered their policy, accepting the Bristol City Council decision was based on the contractual relationship between operator and customer, and as such, the VAT treatment of excess charges should be the same for all operators. Therefore, certain excess charges made by non-local authority operators which were previously considered to be consideration for a taxable supply of parking are now regarded as outside the scope of VAT.

The penalty charges that will no longer be subject to VAT are those that are levied where a driver is in breach of the terms of the contract with the car park operator. The most common situations where a driver may be in breach of the contract are:

• no parking ticket on display
• underpayment
• overstaying purchased parking time
• returning within a specified time
• parking outside marked bays
• parking in bays set aside for disabled drivers or parents with children

The Brief goes on to say that where the terms and conditions make it clear that the driver can continue to use the facilities after a set period upon payment of a further amount without being in breach of the contract – e.g. no charge for an initial 3 hours of parking, but £70 becomes due if that period is exceeded - then the payment will be consideration for use of the facilities and subject to VAT.

None of the situations described above in the bullet points refer to the reason for my own ticket so the default situation is that the payment is in consideration for use of the facilities and subject to VAT. Since that would make the amount one of a punitive nature the law of contract does not apply thus any charge would need to be in the form of financial recompense for any loss sustained by the landowner, which of course is nil.

In consideration of the true legal situation in respect of the terminology applied to the charge, ie whether it's a contract or one for trespass, it is important to also see which legislative track best describes that position. Since HMRC have already made it known in their brief above, supported by their Upper Tier Tax Tribunal case against another parking management company, VCS, that an invoice for a contract of service is vat-able then any non disclosure of that fact makes it a penalty which is non vat-able, and of course prohibited by the BPA Code of Practice.

Guys_Dad

Frankly it looks like what it is - bits of info cut and pasted from the Internet with no decent structure or theme.

Sorry, but better to be annoyed with me than POPLA when it fails.

There are much better appeals in the POPLA Decisions sticky and on here. I will dig some out when I get on a proper computer. Also look for the thread I started yesterday.

collingbone614

Fair enough, that is the truth. But the raw points are there, are they not? This isn't my final letter ready for posting - assume I tidy it up and make it smoother to read, maybe take out the whole waffley part about VAT, get it into a better order.. I'll have a look through the other posts. Do you genuinely think these points aren't enough?

Guys_Dad

http://forums.moneysavingexpert.com/showpost.php?p=62472201&postcount=32

It's mainly the VCS distraction. The one above is comprehensive but only yesterday we had an adjudication that came out clearly against the PPC in respect of the estimate of cost argument and that's why I referred you to my thread. Incorporate and build up that point.

But I am struggling without a keyboard and can help better tomorrow when back on my PC.

collingbone614

Thanks for your thoughts so far. I see what you mean about VCS. I will change the stuff that makes a lot of reference to that firm, so that it looks less like I have copied and pasted it from an appeal against VCS, then edited it - which is what I did.

Coupon-mad

omnirife wrote: »

Thanks for your thoughts so far. I see what you mean about VCS. I will change the stuff that makes a lot of reference to that firm, so that it looks less like I have copied and pasted it from an appeal against VCS, then edited it - which is what I did.

Try these examples, and make sure you never copy & paste stuff that's not relevant to your own case (e.g. stuff about no creditor isn't relevant to PE Notices issued since May but legal case law is always worth quoting as long as you read & understand it (since POPLA adjudicators are law graduates):

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

https://forums.moneysavingexpert.com/discussion/4695227

HTH