Middlesbrough Leisure Park - Excel

Umkomaas

michaelalou wrote: »

Morning all

Received a reply yesterday:

Whilst we appreciate what you have stated in your correspondence, we must advise you that the contravention code was entered incorrectly onto our system which is why your Notice To Keeper stated the vehicle was parked for longer than the permitted period. As you will see from the enclosed PCN (a copy of the one which was affixed to the vehicle), the contravention code was 'AO' and was issued as the motorist was seen leaving the premises.

Please note that the evidence you have supplied us with is insufficient to cancel the Notice. We must advise you we have a written statement from our Parking Attendant that clearly advises us that the driver was seen leaving the site. This statement is legally admissable as evidence in court should this matter go that far. As such, the vehicle was parked in contravention of the Terms and Conditions.

The following options are available to yourself:

1. If you wish to exercise your right to appeal to the 'Parking On Private Land Appeals' (POPLA) service, please notify us within 14 days and we will provide you a verification code alongside relevant forms.

2. Pay the PCN at the reduced rate of £60.00. Payments can be made blah blah blah.........

Well, I certainly won't be taking the second option. I shall be writing back to them today to take option 1 and thanks to the good folks at this here forum, win.

I'd be tempted to invite them to take it to court where you will be producing this as part of your defence bundle.

http://notomob.co.uk/discussions/index.php?action=dlattach;topic=2793.0;attach=2873

However POPLA is the easier route for the moment, but you must cross reference the VCS -v- Ibbotson case within your appeal.

Do have a read of this - informative and amusing.

The_Slithy_Tove

michaelalou wrote: »

The following options are available to yourself:

1. If you wish to exercise your right to appeal to the 'Parking On Private Land Appeals' (POPLA) service, please notify us within 14 days and we will provide you a verification code alongside relevant forms.

2. Pay the PCN at the reduced rate of £60.00. Payments can be made blah blah blah.........

Well, I certainly won't be taking the second option. I shall be writing back to them today to take option 1 and thanks to the good folks at this here forum, win.

I wouldn't do #1 either. Why waste a stamp. They fully know that they must send you POPLA information without you having to ask for it. If they don't, and then attempt to take it further, they are going to look very stupid.

If you do decide to ask for the POPLA code, then please, please put in a complaint to BPA Ltd that Excel have (yet again) failed to conform to the BPA Code of Practice and that they should be sanctioned.

Coupon-mad

I would ask for a POPLA code because life's too short not to beat these scum at POPLA - and why allow them to spam you with junk mail for the whole of 2014.

But also complain to the BPA as The Slithy Tove suggests. You can quote the latest POPLA newsletter:

http://parking-prankster.blogspot.co.uk/2013/11/popla-november-2013-newsletter.html

''Verification code
Operators must, on every occasion, include the verification code in their rejection of representations. The recipient of the rejection should not have to ask for it.
Failure by an operator to provide a verification code in their rejection letter is a breach of the Code of Practice, sanctionable by the BPA.''

michaelalou

Hi all,

Got my popla code today finally. Gonna spend a lot of tomorrow crafting a popla appeal. I'm aware Gpeol is important to put in there. Any other advice would be highly appreciated

Hot_Bring

Don't spend too long on it - you wouldn't want to give the PPCs the satisfaction that it cost you too much effort. GPEOL and poor signage and no contract with the landowner will do it. Alter previously posted examples.

michaelalou

Hi everyone. Finally managed to get round to this after a hectic week last week. It is my draft appeal to POPLA. I hope its ok, any advice would be greatly received. I've taken a few points from other appeals and included my own. Thanks to everyone for their advice and sharing their wisdom on this matter.

My appeal is based on the following points:

1. Excel Parking Services Ltd are in breach of the BPA’s Code of Practice on several points
   
2. The £60/100 charge is grossly disproportionate
   
3. Excel’s legal capacity to enforce/issue Parking Charge Notices

I will outlay the above points individually.

Breach of BPA Code of Practice:

The signage at the car park does not meet the requirements set out by the BPA. According to their code of practice, appendix B page 27, a standard form of entrance sign must be placed at the entrance to the parking area. It states that:

• The AOS roundel must always be shown on the sign
  
• The operator must always mention that terms and conditions apply and say where to find more details about them
  
• There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision.

*place picture here*


As you can see from the above picture of the entrance sign, it does not meet these requirements. I also include a picture of the other signs demonstrating the same points, as well as showing the sign as being very difficult to read as it is placed very high up with very small font.

*place picture here*

I complained to the BPA about this particular breach and received an email from them on 30/08/2013 stating:

Dear Ms Devenport

Thank you for your e-mail.

We have been informed by Excel Parking that all there signage is being replaced and will in future show the BPA/AOS logos. This car park is monitored through CCTV to ensure motorists are complaint with the terms and conditions and parking wardens who will then issue the parking charge notices.

Kind regards

AOS Investigation Team

The above highlighted point clearly states that Excel are acknowledging their breach of the code of conduct. Excel are also in breach of the code of conduct regarding their appeal process. After appealing to them in writing I received two letters about a week apart from each other telling me they had received my appeal and they were processing it. A few weeks later I received their decision rejecting my appeal, which stated that if I wanted to appeal through POPLA I need to write them a reply stating so. According to the BPA code of practice, section 22.12 page 14:

• If you reject a challenge you must tell the driver how to make an appeal to POPLA. This includes providing a template ‘notice of appeal’ form, or a link to the appropriate website for lodging an appeal and the 10-digit verification code.

Excel did not include this with their rejection of my appeal. I had to spend more time writing to them asking for a POPLA verification code. Therefore they are breach of the BPA code of practice on this point.

The £60/100 charge is grossly disproportionate:

The car park in question is free to park in; if the driver did not have to pay to park, how can Excel justify their £60/100 charge for the alleged contravention? I refer POPLA to the case of Vehicle Control Services Ltd vs Mr R Ibbotson (16th May 2012) which found that general business costs cannot constitute a loss. The amount of the "penalty" imposed is completely disproportionate to any alleged "loss" by Excel. It is, therefore, punitive and contravenes the Unfair Contract Terms Act 1997.

I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance. As such, the charge that was levied is punitive and therefore void (i.e. unenforceable).

I also refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC (EWCA Civ 186 [2013]). This case determined 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 Court ruling was "...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. This provides a means of payment at the point of supply, and a means to account to HMRC for the VAT element of the charge. No VAT is itemised on this PCN. 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.


Excel’s legal capacity to enforce/issue Parking Charge Notices:

In their correspondence with me, Excel have not produced any evidence to show that they have any proprietary interest in the car park in Middlesbrough. Nor have they provided any evidence that they are lawfully entitled to demand money from a driver or keeper. As it appears that they do not own the land, nor have any interest or assignment of title of the land in question, it is assumed that they are merely agents for the owner or legal occupier. I contend, therefore, that they do not have the necessary legal capacity to charge the driver of a vehicle for using the car park.

So, I require that Excel provide a full, up-to date, signed and dated contract or agreement with the landowner . A signed witness statement stating that someone has seen a contract is not sufficient. The contract must state that Excel are entitled to pursue these matters through the issue of PCNs and through the courts. This needs to be an actual copy and not simply a document which claims that such a contract or agreement exists.



　

　

　

michaelalou

I've also added the POPLA newsletter quote further illustrating the point of having to ask for my verification code.

michaelalou

*knocks on the door quietly hoping for a response*

Coupon-mad

I would change this heading to 'The £60/100 charge is grossly disproportionate and not a genuine pre-estimate of loss'


Apart from that it looks OK to me.

michaelalou

Brilliant, thank you so much