Peel Center popla appeal help needed

ChileOliveTrees

Hi,

I have been reading all the advice on these forums (thank you) and have appealed the parking notice I received in August from Excel regarding Stockport's Peel Center. Today I received their rejection and my POPLA reference. I have attached my draft appeal letter in the hope that someone can please review and advise please?

Thanks in advance


Dear POPLA adjudicator,


Excel Parking PCN number xxxxxxxxx

POPLA codexxxxxxxxxx

I'm writing this to appeal acharge sent to me by ExcelParking. This occurred after my vehicle entered and exited a car park inStockport Peel Center, on XXXXX.I was parked here for XX Minutes, between the hours of xxpm - xxpm. Excel claim that the vehicle's driverowes them £100 (reduced to £60 if early payment is made) for not displaying aPay and Display ticket.



Thiswas the driver’s first visit to the Peel Center. It is an out of town shopping centre,it was dusk at the time the driver entered the car park. The driver wasconcentrating on ensuring they were in the correct place and then on finding HobbyCraftin order to park nearby. The signs were too high and not adequately lighted andthus were not noticed.

XX dayslater I, the registered keeper, received a charge for £60/£100 (£60 if playedpromptly). The driver was caught driving in and out by an ANPR camera. I, asthe register keeper, summited an appeal to Excel, they confirmed receipt of myappeal on 10th September 2013, their response was dated 14thOctober 2013, however due to being delivered by 2nd class post thiswas not received until 16th October 2013.

I nowwant to set out why I'd like you to cancel this charge:

'Excel's legal capacityto enforce/issue Parking Charge Notices'

Firstly I would like to point out that, in their correspondence with me, Excel haven't produced any evidence todemonstrate that they have the necessary legal capacity to charge the driver ofa vehicle using the car park. Nor that they have any proprietary interest inthis particular piece of land at Stockport peel center.

Accordingly, I kindly ask you to check whether or not Excel have provided an up-to date, signed copy of the contract oragreement with the landowner – one which states that they are entitled topursue these matters through issuing PCNs and through the courts. I'd require that this is an actual copy and not simply a document whichclaims that such a contract or agreement exists.

'Trespass'

If there is no contract, then at most I was guilty of a civil trespass. If thiswas the case, I would be liable to damages. Given that I did no damage to thecar park and the car park was not full when I parked or when I left, it issuggested that there was no loss at all.

'Unlawful Penalty Charge'

Since there was no demonstrable loss/damage and yet a breach of contract hasbeen alleged, it can only remain a fact that this 'charge' is an attempt atdressing up an unlawful penalty to impersonate a parking ticket. This issimilar to the decisions in several County Court cases such as Excel ParkingServices v Hetherington-Jakeman (2008), also OBServices v Thurlow (review,February 2011), Parking Eye v Smith (Manchester County Court December 2011) andUKCPS v Murphy (April 2012) .

On the basis of all the points I have raised, this 'charge' fails to meet thestandards set out in paragraph 19 of the BPA CoP and also fails to comply withthe CPUTR 2008, the UTCCR 1999, the Equality Act 2010 and basic contract law.

'The charge is a penalty and not agenuine pre-estimate of loss'.

Given that the duration of stay was recorded at xx minutes, and the tariff setby the operator for a 1-2 hour stay is just £1, then the amount of the“penalty” imposed is disproportionate to any alleged “loss” by Excel Parking,and is therefore punitive, contravening the Unfair Contract Terms Act 1997.

The £100 charge asked for, far exceeds the cost to the landowner for the timemy car was parked there. The charge cannot be construed as anything but apunitive penalty. In the appeal Excel did not address this issue, and has notstated why they feel a £100 charge is an appropriate pre-estimate of loss. Forthis charge to be justified a full breakdown of the costs Excel has suffered asa result of the car being parked at the car park is required and should add upto £100. Normal expenditure the company incurs to carry on their business (e.g.provision of parking, parking enforcement, signage erection, salaries andoffice rent) should not be included in the breakdown, as these operationalcosts would have been suffered irrespective of the car being parked at that carpark.

It was found in the case of Vehicle Control Services Ltd vs Mr R Ibbotson (16thMay 2012) that general business costs cannot constitute a loss and also hasbeen held to be the case in a number of very recent compelling and comparabledecisions against Excel, when similar cases have been considered by POPLA.

'Unclear And Non-Complaint Signage'

Due to their high position, bright colours, distracting pictograms and thebarely legible size of the small print, the signs in this car park are veryhard to read and understand, especially after hours/after dark. At no point wasI sufficiently informed by any signs that the pay and display duration periodhad changed.

Icontend that the signs and any core parking terms Excel are relying upon weretoo small for any driver to see, read or understand when driving into the carpark. I request that POPLA should check the Operator's evidence and signagemap/photos on this point and compare the signs to the BPA Code of Practicerequirements. I contend that the signs and machines in that car park (wording,position, clarity) do not comply and fail to properly warn/inform the driver ofthe terms and any consequences for breach, as in the case of Excel ParkingServices Ltd v Martin Cutts, 2011

'ANPR Section Of The BPA Code OfPractice'

I further contend that Excel have failed to show me anyevidence that the cameras in this car park comply with the requirements of theBPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in itsentirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section21 of the Code, in its evidence.

‘Complaints, challenges and appeals Sectionof The BPA Code Of Practice'
I further contend that Excel have failed to reply to my appeal and request forPOPLA reference with 35 days of receipt of my appeal as per the requirements ofthe BPA Code of Practice part 22 (Complaints, challenges and appeals). I wouldrequire POPLA to consider that particular section of the Code in its entirety and decidewhether the Operator has shown proof of full compliance with section 22 of theCode, in its evidence.


Irespectfully request that this appeal to beallowed.
Many Thanks

Coupon-mad

Welcome to MSE!

Looks good, nice research and a good first draft.

I was parked here for XX Minutes, between the hours of xxpm - xxpm

...tells them who was driving! Change to 'The driver...'

At no point was I sufficiently informed by any signs that the pay and display duration period had changed.

Does this make sense? Do you know the car park and are you arguing that you didn't know the times had CHANGED? I took your appeal to be saying you didn't know that it was a P&D car park AT ALL? There's something of a discrepancy here in your appeal between the intro (driver didn't see signs as was looking for store...).



Did you receive the Notice to Keeper within 14 days?

Have you emailed a complaint to the Peel Centre Management? Always complain, whatever the circumstances - the customer should be King!

ChileOliveTrees

Thanks - anything else I should change?

Coupon-mad

Looks good to me but see if anyone else adds anything. And double-check it for any anomalies (like accidentally saying 'I parked' again anywhere)!

I did edit my post above to add a comment that you may not have seen.

ChileOliveTrees

Hi, just seen your edited response - I had no idea that it was a pay and display. I went back after I received the notice to check out the signage and to take some photos. I have removed the sentence that you have highlighted, it was bad cutting and pasting on my part, thanks for picking this up.

Yes the notice was received within 14 days just, unfortunately August bank holiday weekend didn't delay it an extra day!

No I haven't complained to anyone else, is there a particular route to take for this, letter, email, phone call??

Do I need to attach all supporting letters to and from Excel with my appeal? Or is the above letter enough?

Thanks

Coupon-mad

The Peel Centre often don't reply to emails but worth a try. Two posters I can recall, got theirs cancelled recently:

https://forums.moneysavingexpert.com/discussion/4745689

https://forums.moneysavingexpert.com/discussion/4772311

HTH

ChileOliveTrees

Thanks I'll look into these. Really appreciate your help. Thank you

ChileOliveTrees

Coupon-mad thank you for your help, My appeal was allowed! Excel were not able to show authorisation from the Landowner to enforce parking restrictions.
Thank you, thank you, such a relief :-)

Redx

mmmm, it makes you wonder why they keep issuing tickets and then going on and on and on then past the first appeal stage doesnt it ?

clearly they are not getting the message !! (not always NO GPEOL either)

kirkbyinfurnesslad_2

Thats good chilie!

Could you post up the decision please

ChileOliveTrees

Reasons for the Assessor’s Determination

The Operator issued a parking charge notice (‘PCN') for failure to display a valid ticket. The Operator submits that a parking charge is now due in accordance with the advertised terms which required motorists to display a valid Pay & Display ticket. The Operator has submitted a copy of a parking enforcement contract in support of its case.

Amongst other grounds, the Appellant disputes that the Operator has authority to issue parking charge notices in relation to this land and required it to prove otherwise.

Membership of the Approved Operator Scheme does require the parking company to have clear authorisation from the landowner, if itself is not the landowner, to enforce parking restrictions. This is set out in the BPA Code of Practice. As with any issue, if the point is specially raised by an appellant in an appeal, then an operator should address it by producing such evidence as they believe refutes a submission that they have no authority. A mere statement to the effect that it has a contract will not be sufficient.

In response to the Appellant’s request for a copy of the contract with the landowner, the Operator supplied a redacted copy of that contract.

This document falls short of showing that the Operator was retained by the landowner to enforce parking restrictions at this site when the PCN was issued. For example: the landowner is not identified (this information has been redacted); the last digit of the year in which the contract starts is obscured; and the document is not signed (any signatures have been redacted). Whilst commercially sensitive information, such as the value of the contract, can legitimately be redacted, the contract must identify the parties to it and contain such information as necessary to authenticate its validity.

Consequently, I must find that the Operator has failed to produce sufficient evidence to refute the Appellant’s submission that it did not have authority to issue a parking charge notice.

I must allow the appeal on this ground alone. It does not fall for me to decide any remaining issues.