Another Excel / Peel Centre casualty

firefly72

Hi again. I couldn't get to it until this evening. Here's another revised draft. I have included specific items from the BPA CoP.

Coupon-mad: yes, the NtK was received within 15 days, and yes, it was worded according to the POFA. (They may be getting their act together?)

I think I've got most of the points covered but other eyes may see otherwise. Thank you again in advance for any feedback.

===

Dear POPLA Assessor

Verification code:
Vehicle registration:
PCN:
PPC: Excel Parking Services Ltd.
Alleged contravention date and time: 30 September 2013, 20:59
Duration of stay: 31 mins
Date of PCN:

I am the registered keeper of the vehicle above and I am writing to appeal against recent parking charges issued to me by Excel Parking Services Ltd for allegedly parking without displaying a valid Pay & Display ticket. My appeal to the PPC was rejected in a letter dated 25 November 2013. I am appealing against the charges on the following grounds:

1. Signage
2. Lack of contract
3. Charge not a genuine pre-estimate of loss
4. ANPR accuracy

1. Signage

On the night in question, my car was driven to the Kentucky Fried Chicken outlet at the Peel Centre retail park in Stockport. The KFC outlet has dedicated bays with signs indicating that customers were allowed to park for 15 minutes. There were no signs indicating that KFC customers are liable for payment charges from the point of entry into the main Peel carpark, which is the only entrance available to get to the KFC. There were also no signs indicating that ANPR technology would be used to capture this entry and applied to KFC customers as soon as they entered to make their way to the KFC, parked their cars in the allocated bays, order their food, wait for it to arrive and then get back into their cars to drive out of the main carpark and be captured by the cameras again. The use of ANPR technology in this manner amounts to unfair entrapment.

In addition, on the night and period in question, apart from the KFC, no other stores in the vicinity were open and the main carpark itself was dark and unoccupied. Until recently parking at this location was free in the evenings and because the signs were so poorly lit, there was no clear indication that parking charges were in force from the point of entry into the main carpark, even if drivers were not intending to use the main carpark and heading straight for the KFC. Excel Parking Services has not provided proof that my car was parked in the main carpark and not within the KFC bays.

Excel Parking Services claims that their ‘signs are highly prominent and meet the requirements set by the British Parking Association guidelines’. I dispute this claim. BPA Code of Practice, item 18.5 cites that ‘If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.’ I maintain that at that time of night, and in darkness, the signs are barely noticeable and the print impossible to read. And in any case, nothing in print or the terms and conditions applies to customers using the allocated bays at the KFC, and whether the use of those bays constituted part of the unspecified ‘grace period’.

2. Lack of contract

To this degree, the driver cannot be said to have breached any contract with Excel Parking Services if there was no intention to park in the main carpark supposedly managed by Excel Parking Services. There cannot be an enforceable contract if there is a non-Pay-&-Display area within a Pay-&-Display carpark where differing terms and conditions apply, and where the parking company has not erected signs with full terms and conditions distinguishing the two separate areas. In my case, the alleged contravention of ‘parking without a ticket/permit’ simply did not occur.

In addition, according to the BPA Code of Practice, item 7.1, the parking company is required to have the ‘written authorisation of the landowner (or their appointed agent)’ which must give the company ‘the authority to carry out all the aspects of the management and enforcement of the site’. It stresses ‘In particular, it [the written authorisation] must say that the landowner requires you [the PPC] to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.’

In their correspondence with me, Excel Parking Services has not provided any evidence that they have the authority to issue these charges. I request that POPLA request a signed copy of the contract with the landowner conferring upon the company the right to pursue these supposed ‘penalties’ through the courts. A certified copy of the said contract should be produced, fulfilling all the terms set out in the BPA Code of Practice item 7.2, and not simply a document claiming such a contract or agreement exists.

3. Charge not a genuine pre-estimate of loss

In the BPA Code of Practice, items 19.5 and 19.6 state that ‘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’ and ‘that charge cannot be punitive or unreasonable.’

Considering the stores were mostly closed at the time in question and there were hardly any cars in the carpark, I maintain that the charge of £100 is excessive and punitive and bears no reflection on the loss that may have been incurred by the landowner or the parking company, if at all. I request that POPLA seeks from Excel Parking Services to provide a detailed breakdown as to how the amount of £100 was arrived at. Costs of running the business may not be included in the pre-estimate of loss.

4. ANPR accuracy

The use of ANPR cameras by private parking companies are required by the BPA to ensure that ANPR equipment is in working order. Items 21.2 and 21.3 state specifically that

21.2 !Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action.

21.3 !You must keep any ANPR equipment you use in your car parks in good working 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 manage your ANPR system may be audited by our compliance team or our agents.

Given the darkness of the night, wholly reflected in the images sent to me along with the PCN, and that their entire case rests on these two very dark, almost black, images, I require Excel Parking Services present records indicating when the cameras were checked and maintained to ensure the accuracy of the images.

On these grounds, I respectfully request that these charges be cancelled and the appeal allowed.

Yours, etc.

Coupon-mad

Looks good to me.

You could add to the requirement for a copy of the landowner contract, that you require it to be an unredacted contract as far as the terms/conditions and contracting parties/date/location and other essential details are concerned.

If you look at the POPLA decisions thread at the top of the forum, a couple of people have recently posted wins v Excel at the Peel Centre and they send a heavily redacted copy of the contract which is worse than useless.

firefly72

Coupon-mad wrote: »

Looks good to me.

You could add to the requirement for a copy of the landowner contract, that you require it to be an unredacted contract as far as the terms/conditions and contracting parties/date/location and other essential details are concerned.

If you look at the POPLA decisions thread at the top of the forum, a couple of people have recently posted wins v Excel at the Peel Centre and they send a heavily redacted copy of the contract which is worse than useless.

I'll do that now, and post the results when I have them!

Thank you again!

firefly72

Hello, I have an update. POPLA is reviewing my appeal next week. Excel copied me in to their response to POPLA with copies of their 'evidence'. Their photos (some taken within the past couple of weeks) were all in broad daylight, and the copy of the contract they provided was redacted. Their pre-estimate of loss as you probably know includes the normal cost of doing business including indirect overheads and maintenance of the ANPR equipment.

I'll post the outcome here when I have it. Interesting to see how many more Peel/Excel appeals have sprung up in the meantime! Excel clearly have a whole team just dealing with POPLA appeals.

Redx

different car park (ashton) but my relative also had the heavily redacted contract, also the inclusion of the operational costs as well, so won on the not a gpeol a few weeks ago

I hope you included pictures of the signs at night, if they are daft enough to use daylight ones, you may be able to send in an email complaining that their evidence fails to take these things into account

but it probably wont matter as it will win on not a gpeol or due to the heavily redacted contract, instead of signage issues

post back when you win

Coupon-mad

I would ping an email to POPLA saying 'response to Excel's evidence pack, verification code xxxxxxxxxx' and say:


EXCEL: photos (some taken within the past couple of weeks) were all in broad daylight.

YOUR RESPONSE: On the night in question, it was well after sunset and the car park was in darkness as were the rest of the shops.

EXCEL: the copy of the contract they provided was redacted.

YOUR RESPONSE: This contract does not show enough detail such as whether any money changes hands (would affect a loss/costs calculation) and who has signed/contracted with Excel. Nor does it show the relationship between Excel & client; the Operator (you suspect) is a mere commercial site agent carrying out a service for the landowner, nothing more, no assignment of title or standing. A redacted contract is insufficient.

EXCEL: The pre-estimate of loss includes the normal cost of doing business including indirect overheads and maintenance of the ANPR equipment.

YOUR RESPONSE: Business costs and write-off allowances are not part of any loss flowing from the parking event that day. And 'overheads, maintenance and cost of ANPR Equipment' is believed to be paid for by the client at this site as part of the contract...so what does that make Excel if they are trying to pretend that the SAME costs make up a PCN breakdown?

firefly72

Just wanted to say thanks to Redx and Coupon-mad for suggesting I email back with a response. POPLA has replied to say they have added the response to my case file. I wouldn't have thought to do so otherwise.

So, thank you again!

firefly72

SUCCESS!! Appeal allowed on grounds of not being GPEOL. Thank you, everyone, for all the help. :T

(Appellant)
-v-
Excel Parking Services Limited (Operator)

The Operator issued parking charge notice number XXX arising out of the presence at Peel Centre in Stockport, on 30 September 2013, of a vehicle with registration mark XXX.

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

It is the Operator’s case that a parking charge notice was correctly issued, giving the reason as: ‘Parked without displaying a valid ticket/ permit’. The Operator submits that a parking charge is now due in accordance with the clearly displayed terms of parking.

The Appellant does not dispute that she failed to purchase and display a valid ticket.

It is the Appellant’s case that:
a) There was insufficient signage on site indicating that a ticket was required to park in the area the Appellant parked in.
b) The Operator does not have sufficient authority to issue parking charge notices in relation to this land.
c) The parking charge does not reflect the loss caused by the alleged breach.

The Appellant has submitted that the parking charge does not represent a genuine pre-estimate of the Operator’s loss, and so is not enforceable. The Operator has not addressed this submission.

There is no dispute that the charge represents specified damages for breach of contract. Accordingly, the charge must be a genuine pre-estimate of loss.
The onus is on the Operator to prove its case on the balance of probabilities. Accordingly, once an Appellant submits that the parking charge is not a genuine pre-estimate of loss, the onus is on the Operator to produce some explanation or evidence to tip the balance in its favour. The Operator has produced a statement which it submits justifies the charge as a pre-estimate of loss; however, I am not minded to accept this justification.

The Operator must show that the charge sought is a genuine estimate of the potential loss caused by the parking breach, in this case, the Appellant’s failure to display a valid ticket. The Operator has produced a list of costs; however, this sum includes a large proportion which is not related to the Appellant’s breach. I do not accept that the parking charge substantially amounts to a genuine pre-estimate of loss.

Accordingly, I allow the appeal.

Chris Adamson
Assessor

Redx

thats the best news for me today , that rat pit deserves all it gets charging people to park just to shop and to eat , as well as the ridiculousness of the signage and payment machines defects etc that occur weekly, never mind the fiasco over the KFC parking issues or the lack of customer service by the onsite management team