PCN help please!

Coupon-mad

Guys_Dad wrote: »

Whether it has cropped up at POPLA before is beside the point. See here for example http://www.yorkpress.co.uk/news/10616762.Car_park_operators_apply_for__retrospective__planning_permission/ or http://www.leicestermercury.co.uk/163-1-500-day-8211-car-park-planning-permission/story-12041674-detail/story.html and. http://www.gazette-news.co.uk/news/local/colchester/8949250.Commuter_car_park____has_no_planning_permission___/

Just a few examples from many more.

We also have the recent example where Tesco were the main site landowners and had not given authority to a subordinate company to bring in a PPC. The PPC was expelled.

Yep, you and I and other regulars here know about certain cases, but none of that is going to come out at POPLA, nor win at POPLA IMHO, unless the OP states specific issues/knowledge about a particular car park. It seems 2 or 3 posters are getting muddled and using it as their main point, whether or not it's even relevant to their car park. And in doing so, I think I saw one where the point about lack of landowner contract/authority was missed or the whole point muddled.

Ozzyno5

Hello all.

this is my final draft - i have added in an ANPR paragraph and another about not offering a discount as well as tweaking some of the details.

"APPEAL RE: XXXX CHARGE ******/******,*********
CAR PARK **/**/2013, VEHICLE REG: **** ***

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. Neither The Operator or their client has proved that they have planning consent to charge motorists for any alleged contravention.

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

3. The signage at the car park was not compliant with the British Parking Association standards and there was no valid contract between The Operator and the driver.

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

5. The charge breaches BPA guidelines by not offering the required discount for early payment.

6. The Operator has failed to prove that the ANPR cameras located at this car park are fully BPA compliant.

Here are the detailed appeal points.

1. 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 Operator to strict proof to provide evidence that there is planning consent to cover the current parking conditions and chargeable regime in this car park.

I note that The Operator 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.)

2. 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 Operator’s authority, I require The Operator 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 Operator

3. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between The Operator 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 Operator are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. 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. I require the operator to provide photographic evidence that proves otherwise.

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 Operator 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.

4. 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 flowing 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 Operator 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 Operator 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.

5. The charge notice breach BPA guidelines
The charge notice sent from The Operator, dated 29th October 2013, shows a charge of £60 to be paid within 28 days with the amount reduced to £40 if paid within 14 days. This charge therefore breaches BPA guidelines 19.7 and 34.6 by failing to offer at least a 40% discount of the full charge if payment is made within 14 days.

6. ANPR section of the BPA Code of Practice/Use of ANPR and data collection
I also 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). I require POPLA to consider that particular section of the Code in its entirety, and decide whether Excel has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.

This concludes my appeal. I will await your findings on this matter.

Yours Faithfully

Coupon-mad

That will win!

If you want to beef up the ANPR paragraph then there is more to make the PPC jump though these hoops:

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


HTH

Ozzyno5

GOOD NEWS! WIN!

My PCN has been cancelled by Excel Parking! :-)
Muchos thanks to everybody for their help and thank you for having patience with me! You guys (and girls) do a great job helping people out.
Thank you again!

Have pasted the POPLA response below:

Dear Sir or Madam
Mr XXXXXXXX (Appellant)
-v-
Excel Parking Services Limited (Operator)

The Operator has informed us that they have cancelled parking charge notice number XXXXXXX , issued in respect of a vehicle with the registration mark XXXXXXX .
Your appeal has therefore been allowed by order of the Lead Adjudicator.
You are not liable for the parking charge and, where appropriate, any amounts already paid in respect of this parking charge notice will be refunded by the Operator.

bod1467

They saw your appeal, knew they had no chance and caved before it cost them at POPLA.