Panicking about Excel Parking Services PCN

BenCr

Okay, I've taken that template and added my point about the POFA letter to keeper being late.

How's this?

I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.

1. Excel Parking Services didn't serve the "notice to keeper" within the time frame specified by the POFA act.

2. The signage at the car park was not compliant with the British Parking Association standards andt here was no valid contract between the parking company and the driver.

3. The amount demanded is not a Genuine Pre-estimate of loss.

4. Neither the parking company or their client has proved that they have planning consent to charge motorists for any alleged contravention.

5. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.

Here are the detailed appeal points.

1. Excel Parking Services didn't serve the "notice to keeper" within the time frame specified by the POFA act.

According to the Protection of Freedoms Act, a private parking company has to wait 28 days after issuing a parking charge to a driver before they can pursue the keeper. The parking company then has 28 days in which to pursue the registered keeper. Excel's letter to the keeper was "dated" on the final day of that period and therefore couldn't have been delivered within the allowed time frame.

2. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver

Following receipt of the charge, I have personally visited the site in question. I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

3. The amount demanded is not a Genuine Pre-estimate of loss

The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss followiing from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre.

The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach.

For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.

It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.

4. No right to charge motorists for overstaying

Planning consent is required for car parks and have conditions that grant permission as the car park provides a service to the community. To bring in time limits, charges and ANPR cameras, planning consent is required for this variation. I have no evidence that planning consent was obtained for this change and I put the parking company to strict proof to provide evidence that there is planning consent to cover the current parking conditions and chargeable regime in this car park.

Additional paragraph where the land is not owned by the client (e.g. ALDI land where they are not the landowner)
"I note that the parking company has not been engaged by the landowner, but by a lessee or tenant of the land. I require proof from the actual landowner that their contract with the lessee/tenant gives authority for any form of parking restrictions or charges to be brought in. (There are VAT implications when a car park is a revenue generating business that may impact upon a landowner and that is why it needs to be established that they need to have granted permission in their lease.")

5. No valid contract with landowner

It is widely known that some contracts between landowner and parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require the parking company to produce a copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.

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

This concludes my appeal.

Redx

seems reasonable to me, but check the successful popla appeals for that ppc and car park in the sticky thread to double check what the assessor said about the winning clause and ensure yours mention it, possibly even naming the assessor and what they have said in those previous cases - where relevant of course

and in point 2 , there is a t in AND (spelling mistake) , possibly should say AND THEREFORE ?

BenCr

There doesn't appear to be anything for that particular car-park but there are dozens of cases against Excel for no genuine pre estimate of loss and another few about them not having the right contract with the landowner in another carpark.

Redx

the main issues are making them prove each and every point, which you seem to have covered

you only have to win on one point, typically the not a gpeol point

HO87

@ BenCr

If we cite a case which establishes a legal precedent (such as the ParkingEye v Somerfield case) or then we should cite it in the standard format, which is:

ParkingEye Ltd -v- Somerfield Stores Ltd [2012] EWCA Civ 1338

This differentiates it from those cases which do not set a precedent (but which we are seeking to draw the assessor's attention to as being persuasive decisions), and provides a means of immediate reference - with which they will be familiar - should they have not encountered the case before.

There are several instances of cases that are cited from time to time which may create confusion because of slightly sloppy means of citation e.g. there are three linked though separate cases entitled Vehicle Control Services Ltd -v- HMRC.

Being accurate ensures there is less likelihood of error.

BenCr

Fantastic,[STRIKE] the POPLA code isn't being accepted[/STRIKE] I tried entering the POPLA code on the wrong page of the POPLA website.

My bad.

Coupon-mad

Hope you've got it accepted now as you were swiftly running out of time. A POPLA code is only valid 28 days starting with the day Excel generated it.

BenCr

It's been submitted within the time frame.

It's not been accepted, rejected or even acknowledged by popla yet

Redx

popla are closed until monday the 6th of jan, says so on the BPA website and pranksters blogs

BenCr

I had until the 1st of Jan and submitted it on the 29th of December

@Coupon-Mad It thought you'd hinted at delaying sending my appeal as much as possible.

And you won't be posting it this month will you...think about it...Christmas postal delays!

I've just remembered I have got an auto-confirmation of the appeal and it makes sense that they're not in until Monday.