Parking Overstay (Membury M4)

Guys_Dad

Just a couple of points.

I would summarise the appeal points you are making at the start so they are not missed as has happened last week.Your layout is good, so that shouldn't happen but belt and braces.

In the No Contract with Landowner, and the witness statement - they do use them so nip that in the bud now with a stronger individual paragraph. Take a look at this core template on that point.https://forums.moneysavingexpert.com/discussion/4816165

2nd paragraph, point 2.

supertedgb

Thanks Guys Dad.


I have added a summary at the top and replaced my witness paragraph (para 2 of point 2) with the paragraph (para 2 of point 2) I think you were referring to - I hope that's what you meant.


Here's draft number 2.

---

I am the user of the vehicle related to the parking charge notice xxxxxx received. I have researched the matter and contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered:



1. Unclear, Inadequate and Non-Compliant Signage

2. Contract with the Landowner is not Compliant with the BPA code of Practice and No Legal Status to Offer Parking or Enforce Charges

3. No Contract with the Driver

4. Unfair Terms


5. Unreasonable Charges


6. No Breach of Contract and No Genuine Pre-Estimate of Loss


Below are the detailed appeal points.

UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE

Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, understand and no notices at all are positioned near the entrance, the parking space used or exists to any of the shops.

I contend that the signs and any core parking terms ParkingEye are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity and frequency) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])


CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES

ParkingEye do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, ParkingEye 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 nor have any interest or assignment of title of the land in question.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner ,has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company

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.

I further contend that ParkingEye 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.

The Operator, either through the original correspondence, nor or reply to appeal make no reference to the recovery of monies for the Landlord at all.


NO CONTRACT WITH THE DRIVER

There is no contract between ParkingEye and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.




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."




UNREASONABLE

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”




NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS

There was no parking charge levied, the car park is “free”. On the date of the claimed loss it was only at approximately 20% capacity and there was no physical damage caused. There can have been no loss arising from this incident. Neither can ParkingEye lawfully include their operational day-to-day running costs in any 'loss' claimed. 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.

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. Nor does it even equate to local council charges for all day parking. 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.




UNLAWFUL PENALTY CHARGE

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.




SUMMARY

On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.

Coupon-mad

Yep, that's a good draft so far. A few thoughts:

I would conclude that the appellant made a 'without prejudice/without admissions' payment offer by cheque, earlier on, to try to resolve the dispute. And that this £10 offer is expressly revoked since PE have not cashed the cheque as full and final settlement, and because if & when you win at POPLA a PPC cannot bank/keep payments made and would have to refund it if they had. Ask the POPLA assessor to ensure that when they uphold your appeal(!) they make an order including refunding the £10 or destroying the cheque, as appropriate.

I think I would get rid of the 'Unreasonable' paragraph and replace it with one about ANPR like this one I drafted following a court win against PE recently:

https://forums.moneysavingexpert.com/discussion/comment/63744997#Comment_63744997

and remove this odd paragraph which isn't needed and not relevant to the 'no landowner contract' argument:

'I further contend that ParkingEye 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.'

Finally just noticed this is a MSA (Motorway Services) and we have a good POPLA appeal example for MSA cases already on here (username starts with P I think). Can be found by searching the forum for the keyword 'MSA'. And it's important because it has a lot of depth about signage which in a MSA has to comply with more than other car parks, so there are more hoops you can throw for PE to try to jump through.

supertedgb

Thanks ever so much for all this advice.

I will factor in all your suggestions and send it on to POPLA. If all works out I will post my final draft here for future use.

Thanks again

supertedgb

My hearing is set for next week. PE have sent me a big lump of evidence that they have submitted to POPLA (Looks pretty compelling TBH) - they have also returned my uncashed check.


The only point I now wish that I re-raised in my appeal was that I went to Starbucks which is a separate building to the main services - most of their evidence revolves around the main services building.


Hey ho - let's see what happens - I will update here the result.


Cheers

nigelbb

Please post what you sent POPLA (as you promised). If you have missed the crucial magic words there is still time to submit further evidence to POPLA.

supertedgb

Yesterday I received the appeal decision. Let me quote the response:

"
The Operator issued parking charge notice number xxx arising out of the presence at xx, on xx October 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.
"

An absolute RESULT ! Thank you so much everyone for their amazing help - Understandably, I am over the moon

Below are the reasons given by POPLA - surprisingly it focussed on genuine pre-estimate of loss as opposed to some of the other factors.

"
Reasons for the Assessor’s Determination

On xx October 2013, a parking charge notice was issued to a vehicle with registration mark xx for parking for longer than the two hours permitted.

The Operator’s case is that the site is “2 Hours Free Stay Car Park” as clearly stated on the signage. The Operator says that the terms and conditions are clearly displayed on numerous signs placed at the entrance, exit and throughout the site. The Operator says that the Appellant’s vehicle was parked for [nearly 3 hours] longer than the permitted stay. They have produced copies of the parking charge notice and the signage. Photographs of the vehicle taken on the date of the parking event have also been enclosed by the Operator.

The Appellant made various submissions but I will only consider the point of the excessive charge. The Appellant says that the parking charge is excessive, unreasonable, disproportionate and not a genuine pre-estimate of loss.

The Operator rejected the Appellant’s representations, as set out in the correspondence they sent because they state that a breach of the car park conditions had occurred by parking for longer than the stay authorised. They state that they believe that their charges are fair and reasonable and they have provided a list of costs they incur in issuing and enforcing the parking charge which include among other costs but it is not restricted to costs to BPA membership, DVLA, loss of revenue, national insurance and etc.

Although, the Operator responds to the points raised by the Appellant, I find that the Operator in this case refers to general principles and to other cases but does not appear to specify the actual heads of loss. I note that some heads submitted in this present case may fall within a genuine pre-estimate of loss, nevertheless, I find that a substantial proportion of them do not. Equally for the reasons, set out above, a list of all their costs in the case cannot amount to commercial justification. In short, the damages sought on this particular occasion do not substantially amount to a genuine pre-estimate of loss or fall within commercial justification.

Accordingly, the appeal must be allowed.
"

I am not sure if that really is the end of the matter, or whether PE can take further action and appeal the appeal decision and/or take me to court, so we will see how things pan out, but this certainly adds weight to any continued argument.

As promised, I will now post my original POPLA appeal in the hope it can help others in my situation.

Thanks again

ezerscrooge

Great news another loss for the shysters.

They can do no more to you - the decision of POPLA is binding on operators (though not on the motorist). That should be the last you'll hear from them.

supertedgb

Here's my successful appeal.

"
I am the user of the vehicle related to the parking charge notice xxxreceived. I have researched the matter and contend that I am not liable for theparking charge on the following grounds and would ask that they are allconsidered:

1. Unclear, Inadequate and Non-Compliant Signage

2. Signage not compliant with Motorway Service Station Requirements

3. Contract with the Landowner is not Compliant with the BPA code of Practice and No LegalStatus to Offer Parking or Enforce Charges

4. No Contract with the Driver

5. Unfair Terms

6. ANPR Accuracy

7. No Breach of Contract and No Genuine Pre-Estimate of Loss

Below are the detailed appealpoints.

UNCLEAR,INADEQUATE AND NON-COMPLIANT SIGNAGE

Due to their high position, overall small size and the barely legible size ofthe small print, the signs in this car park are very hard to read, understandand no notices at all are positioned near the entrance, the parking space usedor exits to any of the shops.

I contend that the signs and any core parking terms ParkingEye arerelying upon were too small for any driver to see, read or understand. Irequest that POPLA check the Operator's evidence and signage map/photos on thispoint and compare the signs to the BPA Code of Practice requirements. I contendthat the signs on this land (wording, position, clarity and frequency) do notcomply and fail to properly warn/inform the driver of the terms and anyconsequences for breach, as in the case of Excel Parking Services Ltd v MartinCutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]

SIGNAGE NON-COMPLIANT WITH MOTORWAY SERVICE STATION REQUIREMENTS
This was a Motorway Services Area. Operators of Motorway Services Areas (MSAs)and their agents must comply with the requirements of Government Policy. Theseprovisions are reflected in the Traffic Signs Agreement into which they enterwith the Highways Agency. The Highways Agency, on behalf of the Department forTransport (DfT), published a policy on the provision of roadside facilities onits network. That policy is 'DfT Circular 01/2008: Policy on Service Areas andother Roadside Facilities on Motorways and All-purpose Trunk Roads in England'.

The policy states that “B19. At all types of site, where a charge is to belevied for parking beyond the mandatory two free hours, the charging regimemust be clearly displayed within both the parking areas and the amenitybuilding.”

The compliance of the MSA with the above policy is disputed and I therefore requireParkingEye to prove that such clearly displayed signage exists within theamenity
building(s) at the car park in question. It is not enough to prove that suchsignage exists within the car park itself.

Furthermore the policy states “All signing of roadside facilities and signingarrangements within sites must comply with the current Traffic SignsRegulations and General Directions and any other guidance as may be issued fromtime to time by the Department for Transport or the Highways Agency. Approvalmust be sought from the
Highways Agency’s signs specialist for the use of all non-prescribed signs.”

I require ParkingEye to show proof to the POPLA adjudicatorthat the DFT/Highways Agency has granted special authorisation for ParkingEye'straffic signs in this particular MSA to beexempt from this policy requirement. It will not be acceptable for Parking Eyeto claim that these particular signs are in ParkingEye's own opinion not'traffic signs' when these signs have not been erected or positioned to directpedestrians but instead act to provide information to vehicle users who maynever leave their vehicles.

CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODEOF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES

ParkingEye do not own this car park and are assumed to be merely agentsfor the owner or legal occupier. In their Notice and in the rejection letters, ParkingEyehave not provided me with any evidence that it is lawfully entitled todemand money from a driver or keeper, since they do not own nor have anyinterest or assignment of title of the land in question.

It has also been widely reported that some parking companies have provided“witness statements” instead of the relevant contract. There is no proofwhatsoever that the alleged signatory on behalf of the landowner has ever seenthe relevant contract, or, indeed is even an employee of the landowner. I require,if such a witness statement is submitted, that it is accompanied by a letter,on landowner’s headed notepaper, and signed by a director or equivalent of thelandowner, confirming that the signatory is, indeed, authorised to act on behalfof the landowner, has read and the relevant terms of the contract and isqualified to attest to the full limit of authority of the parking company

I do not believe that the Operator has the necessary legal capacity to enterinto a contract with a driver of a vehicle parking in the car park, or indeedthe legal standing to allege a breach of contract. I refer the Adjudicator tothe 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 todetermine 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 willnot be." The ruling of the Court was that "I would hold, therefore,that the monies that VCS collected from motorists by enforcement of parkingcharges were not consideration moving from the landowner in return for thesupply of parking services." In other words, they are not, as the Operatorasserts, a contractual term. If they were a contractual term, the Operatorwould have to provide a VAT invoice, to provide a means of payment at the pointof supply, and to account to HMRC for the VAT element of the charge. TheAppellant asserts that these requirements have not been met. It must thereforebe concluded that the Operator's charges are in fact damages, or penalties, forwhich the Operator must demonstrate his actual, or pre-estimated, losses, asset out above.

The Operator, either through the original correspondence, nor reply to appealmake no reference to the recovery of monies for the Landlord at all.

NO CONTRACT WITH THE DRIVER

There is no contract between ParkingEye and the driver, but even if there was acontract then it is unfair as defined in the Unfair Terms in Consumer ContractsRegulations 1999. So the requirements of forming a contract such as a meetingof minds, agreement, certainty of terms, etc. were not satisfied.

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. Inparticular, Schedule 2 of those Regulations gives an indicative (andnon-exhaustive) list of terms which may be regarded as unfair and includes atSchedule 2(1)(e) "Terms which have the object or effect of requiring anyconsumer who fails to fulfil his obligation to pay a disproportionately highsum in compensation." Furthermore, Regulation 5(1) states that: "Acontractual term which has not been individually negotiated shall be regardedas unfair if, contrary to the requirement of good faith, it causes asignificant imbalance in the parties' rights and obligations arising under thecontract, to the detriment of the consumer" and 5(2) states: "A termshall always be regarded as not having been individually negotiated where ithas been drafted in advance and the consumer has therefore not been able toinfluence the substance of the term."

ANPR ACCURACY
This Operator is obliged to ensure their ANPR equipment is maintained asdescribed in paragraph 21.3 of the British Parking Association's ApprovedOperator Scheme Code of Practice. I require the Operator to present records asto the dates and times of when the cameras at this car park were checked, adjusted,calibrated, synchronised with the timer which stamps the photos and generallymaintained to ensure the accuracy of the dates and times of any ANPR images.This is important because the entirety of the charge is founded on two imagespurporting to show my vehicle entering and exiting at specific times. It isvital that this Operator must produce evidence in response to these points andexplain to POPLA how their system differs (if at all) from the flawed ANPRsystem which was wholly responsible for the court loss by the Operator inParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judgesaid the evidence form the Operator was 'fundamentally flawed' as thesynchronisation of the camera pictures with the timer had been called intoquestion and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require the Operator inthis case to show evidence to rebut this point: I suggest that in the case ofmy vehicle being in this car park, a local camera took the image but a remoteserver added the time stamp. As the two are disconnected by the internet and donot have a common "time synchronisation system", there is no proofthat the time stamp added is actually the exact time of the image. The operatorappears to use WIFI which introduces a delay through buffering, so"live" is not really "live". Hence without a synchronisedtime stamp there is no evidence that the image is ever time stamped with anaccurate time. Therefore I contend that this ANPR "evidence" fromthis Operator in this car park is just as unreliable as the ParkingEye systemand I put this Operator to strict proof to the contrary.


NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS

There was no parking charge levied, the car park is “free”. On the date of theclaimed loss it was only at approximately 20% capacity and there was nophysical damage caused. There can have been no loss arising from this incident.Neither can ParkingEye lawfully include their operational day-to-dayrunning costs in any 'loss' claimed. I contend there can be no loss shownwhatsoever; no pre-estimate (prior to starting to 'charge for breaches' at thissite) has been prepared or considered in advance.

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 anyalleged breach of contract. Nor does it even equate to local council chargesfor all day parking. This is all the more so for the additional charges whichoperator states accrues after 28 days of non-payment. This would also apply toany mentioned costs incurred through debt recovery unless it followed a courtorder. I would question that if a charge can be discounted by 40% byearly payment that it is unreasonable to begin with.

UNLAWFUL PENALTY CHARGE

Since there was no demonstrable loss/damage and yet a breach of contract hasbeen alleged for a free car park, it can only remain a fact that this 'charge'is an attempt at extorting an unlawful charge to impersonate a parking ticket.This is similar to the decisions in several County Court cases such as ExcelParking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow(review, February 2011), Parking Eye v Smith (Manchester County Court December2011) and UKCPS v Murphy (April 2012) .

The operator could state the letter as an invoice or request for monies, butchooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemedan official parking fine similar to what the Police and Council Wardens issue.

SUMMARY

In response to the original charge notice and without prejudice and withoutadmission I made a payment offer of £10 by cheque to resolve the dispute. This offer has been expressly revoked sinceParkingEye have not cashed the cheque as full and final settlement.

On thebasis 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 withbasic contract law.
"

I hope this proves useful to others. Thanks for everyone involved in helping me craft this appeal. !!

nigelbb

Well done! That's a cracking appeal & can be used basically unaltered by anyone else getting a charge for an overstay at any MSA not just Membury.

The point about clearly displayed signage within the amenity building(s) is an interesting one as I have never seen signage prominent or otherwise within the actual services at an MSA. All they need is signs on the exit doors saying "Don't forget to pay for parking if staying more than 2 hours" that would however drastically reduce PPC opportunities for scamming motorists.