Newbie wants help, Peel Centre PCN.

franpuma

I would like to say hi to everybody on this amazing site and after several months of lurking looking at everybody else's issues I now need some advice of my own.
My car was parked in the Peel Centre for a spot of shopping on 24/8/2013 for a total of 45 mins. I did not see the signs about payment, but to be honest I was not looking as I have honestly never paid at one of those centres in my life. Anyway, on 5/9/2013 I received the PCN from Excel, just like loads of others on this site. Panic time! I was going to just pay but my husband said No Way! My husband then sent an email as follows:
In reference to the speculative invoice received XL******** dated 03/09/2013, the keeper denies all liability to your company as it is an unlawful punitive charge, thus a penalty! If you reject this challenge the keeper requires within 35 days a POPLA verification code for them to appeal independently, per Version 3 of the BPA Code of Practice.

The keeper has nothing further to add, and will not respond to any
correspondence from your company unless it contains the POPLA code, furthermore the keeper is fully aware that you must pay £27+Vat for this, so don't forget!

The challenge will be deemed accepted if there is no POPLA code on any rejection that you supply within the time-frame stipulated above.

After thinking (naively) that I would not hear anything, on 21/10/13 I received another letter from Excel stating:
We are in receipt of the recent correspondence received on 15th September 2013 in connection with the above referenced Parking Charge Notice.
We can confirm that DVLA records indicate that you were the Registered Keeper of the above vehicle on the date the contractually agreed terms and conditions were breached. In the Parking Charge Notice it is clearly stated that you had 28 days to either appeal, settle the Notice by making payment, or provide a serviceable name and address for the driver so that we may pursue them. Despite this request, a full name and serviceable address for the driver has not been provided.
Please be aware that as you have failed to provide us with the full name and serviceable address for the driver within the 28 day period stipulated on the Parking Charge Notice, we are now within our rights to recover from the Registered Keeper under the Protection of Freedoms Act 2012.
The Peel Centre in Stockport is a pay on entry Pay and Display car park. The terms and conditions of the car park require for a valid Pay and Display (P&D) Ticket to be purchased after entering the car park, detailing the full vehicle registration mark (VRM) i.e. Y*****. Management of this site is conducted via ANPR cameras that take photographs of vehicles entering and exiting the car park and work in conjunction with the Pay and Display machines in situ.
With reference to the comments made within your correspondence, we would make the following comments:
On the day in question, the driver did not comply with the Terms and Conditions of parking by failing to purchase a valid P&D ticket. We note the comments you have made advising that you were waiting. However, this is a breach of the terms and conditions which you agree to adhere to upon entering The Peel Centre Car Park. Our signage clearly states that you are to "purchase a valid ticket". Furthermore the signage goes on to state that "Parking charge notices will be issued for:-failing to purchase a valid ticket at the time of parking". As such we have decided to reject your appeal for the reasons as outlined above.
The required payment of £60.00 is to be received within our office by 1st November 2013. If the payment is not received by this date the amount payable will increase to £100.00. Failure to comply may result in the issue of court proceedings whereby further costs will be incurred.
The letter then goes on to detail how to pay, or appeal to Popla etc.
What I would like is advice on what to do next. I have 28 days from 18th October to appeal to Popla. I have followed a thread by BullTerrierFan that is virtually identical to my own case. Would it be okay to send in an appeal very similiar to BullTerrierFan? In their appeal rejection letter, you will notice that Excel write "We note the comments you have made advising that you were waiting." I would like to know where I have said this. You can see from my email that I have not mentioned waiting.
Thanks for reading this, hope it didn't go too long, I await any advice from some of the better informed members of the forum.

Coupon-mad

Just reply and say at no point did the previous challenge say that the car was 'waiting'. As the registered keeper I am entitled to a POPLA code when you reject my challenge - you have omitted to include my code. I have no legal duty to tell you who was driving. Send my POPLA code now or I will report Excel to the BPA.

By the way that wasn't the best wording as it would have been better with a solid appeal point (appreciate your OH must have got it from an older thread from earlier in the Summer. We no longer suggest such a lack of detail, even one point about unclear signs would do, next time!).

franpuma

Dear Coupon-mad, thanks for your reply. Maybe I didn't make myself very clear. They have sent me the Popla code. So what do I need to do now. As I said, the Popla appeal from BullTerrierFan sounds really good and was wondering if I could adapt it and reword it slightly so it doesn't look like I have copied it, taking out the bit about KFC and making it more personal to my case but keeping in the main bullet points. BullTerrierFan's appeal is below:

Dear POPLA adjudicator,
RE: Excel Parking PCN number xxxxxxxxx
POPLA code xxxxxxxxxx

I'm writing this to appeal a charge sent to me by Excel Parking. This occurred after my vehicle entered and exited a car park at the Peel Center in Stockport, on **/08/2013. The vehicle was parked there for 77 Minutes, between the hours of *:**pm - *:**pm. Excel claim that the vehicle's driver owes them £100 (reduced to £60 if early payment is made) for not displaying a Pay and Display ticket.

The driver and the passengers of the vehicle were not from the area and spotted the kfc outlet while passing by. They have never encountered a retail park where parking is chargeable hence not looking for signage or purchasing a ticket.

I now want to set out why I'd like you to cancel this charge….
.
1. 'Excel's legal capacity to enforce/issue Parking Charge Notices'

I would like to point out that, in their correspondence with me, Excel have not produced any evidence to demonstrate that they have the necessary legal capacity to charge the driver of a vehicle using the car park. Nor that they have any proprietary interest in this particular piece of land at the peel center in Stockport.
I require Excel to provide a copy of the contract in force that gives them authority to pursue motorists for such charges as they are demanding from me as required by section 7 of the British Parking Association Code of Practice.



2.'Trespass'

If there is no contract, then at most I was guilty of a civil trespass. If this was the case, I would be liable to damages. Given that I did no damage to the car park and the car park was not full when I parked or when I left, because the occupants were there as customers of the outlets, It is suggested that there was no loss at all.

3. 'Unlawful Penalty Charge'

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, it can only remain a fact that this 'charge' is an attempt at dressing up an unlawful penalty 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) .

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 the UTCCR 1999, the CPUTR 2008, Equality Act 2010 and basic contract law.

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

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

The £100 charge (£60 if paid within 14 days) asked for, far exceeds the cost to the landowner for the time my car was parked there. The charge cannot be construed as anything but a punitive penalty. In the appeal Excel did not address this issue, and has not stated why they feel a £100 charge is an appropriate pre-estimate of loss. For this charge to be justified a full breakdown of the costs Excel has suffered as a result of the car being parked at the car park is required and I would expect to add up to £100. Normal expenditure the company incurs to carry on their business (e.g. provision of parking, parking enforcement, signage erection, salaries and office rent) should not be included in the breakdown, as these operational costs would have been suffered irrespective of the car being parked at that car park.

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

5. 'ANPR Section Of The BPA Code Of Practice'

I wish to further contend that Excel have failed to show me any evidence that the cameras used at 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.

I respectfully request that this appeal to be allowed.

Then add a bit about not saying anything about waiting. Thanks again for the reply, it really helps knowing that there are people out there fighting the cause against these cowboys.

Coupon-mad

BullTerrierFan sounds really good and was wondering if I could adapt it and
reword it slightly so it doesn't look like I have copied it, taking out the bit
about KFC and making it more personal to my case but keeping in the main bullet points.

Yes, I agree re-draft that version, should be fine! We always win at POPLA.

franpuma

Thanks Coupon-Mad, I will crack on with that tomorrow, and will let you know how I get on. Here's hoping!!
Franpuma.

franpuma

:j Well, I got the decision today and guess what? I've won my appeal against Excel Parking. Basically, the assessor at POPLA said that the amount they wanted was not a genuine pre-estimate of loss because as other people have posted on this site Excel were trying to say that their installation costs, staff costs, etc were all part of their losses. The assessor did not accept this and said that my appeal must be allowed. I would like to thank Bull Terrier Fan for pointing me in the right direction with the appeal wording, and Coupon Mad for the advice and encouragement. :j:j

Umkomaas

Well done franpuma, another PCN bites the dust on GPEOL.

Have a trouble-free Christmas without this nonsense hanging over you.

franpuma

Thanks for that Umkomaas . Yes, even though you know that everybody wins at Popla, you can't help wondering if you will be the first one to lose an appeal. Still, no more worries and another loss for the bad guys.

Coupon-mad

Now you know indeed that everyone here does win at POPLA nowadays - easy when you know how! Spread the word among friends, colleagues & family.