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Excel PCN for a company car - POPLA advice
Edradour
Posts: 2 Newbie
Hello, after reading through lots of advice in previous posts, I've drawn up an appeal to POPLA against a PCN from Excel, and I'd be grateful for any comments and advice you might be able to offer.
Here's the context:
The car (leased company car) was parked in Smyth Street private car park in Wakefield City Centre in mid July this year. A ticket was purchased - the driver is sure an overpayment was made, and the car left after 187 minutes. On September 13th (!) we received a PCN which states the car stayed 187 minutes, and shows photos of it arriving and leaving. Any text on the photos is completely unreadable. It doesn't state how much was paid, or how long the alleged overstay was. (Given the lengthy delay, the ticket is no longer in existence.)
We contested on these grounds, and also on the grounds that we received the NtK after 14 days. We have received a reply rejecting the appeal, giving no evidence of amount paid or length of supposed overstay. It also claims "We would like to advise that we have sent the PCN within the 14 days from from the time of issue and have therefore adhered tot he terms and conditions of POFA. As this was a Hire and lease vehicle the PCN was sent to the registered keeper of the vehicle and it has taken time for us to receive your details from the Hire and Lease company. We would therefore like to confirm that we have sent the PCN within the 14 days of issue of the PCN."
However, I understand that I am the registered keeper of the vehicle (the Hire and Lease company are the owners), and therefore should have received the PCN within 14 days of the alleged contravention. Am I correct?
Here's the POPLA appeal I've written:
I am the registered keeper of vehicle registration xxxxxxx and I contend that I am not liable for the parking charge issued by Excel Parking Services Ltd on 18th July 2013. I wish to appeal against the PCN on the following grounds.
1. The vehicle was not improperly parked
2. No Creditor identified on the Notice to Appellant
3. Charge not a genuine pre-estimate of loss
4. Failure to comply with the Protection of Freedoms Act 2012, Schedule 4, paragraph 9.4
The vehicle was not improperly parked
A ticket was purchased from the pay and display machine. The driver returned within the time paid for. However, as the notice arrived with me (the keeper) 57 days after the alleged contravention, the evidence no longer exists. Excel Parking Services Ltd have provided no evidence of how much money was paid for parking, and no evidence of how long the alleged infringement was. The only evidence provided is a photograph of the car arriving and leaving, with unreadable data alongside the image. Under The Protection of Freedoms Act 2012, para 9) 2), the Operator must c) describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable; (and) (d) specify the total amount of those parking charges that are unpaid. The information in bold is not in the notice, and therefore the notice is not compliant with the Act. I therefore respectfully request that my appeal is upheld and the charge dismissed.
Notwithstanding the above, I also request that you consider the following points:
No Creditor identified on the Notice to Appellant
Failing to include specific identification of ‘the Creditor’ is misleading and does not comply with paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012: identify the creditor and specify how and to whom payment or notification to the creditor may be made. Whilst the Notice has indicated that the operator requires a payment to Excel Parking Services Ltd, there is no specific identification of the Creditor who may, in law, be Excel Parking Services Ltd or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that ‘The Creditor is…’ and the Notice does not. POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 9 it must, as with any statutory provision, comply with the Act. As the Notice was not compliant with the Act, it was not properly issued. I therefore respectfully request that my appeal is upheld and the charge dismissed.
Charge not a genuine pre-estimate of loss
The demand for £100 is punitive, unreasonable, exceeds an appropriate amount, has no relationship to the loss that would have been suffered by the Landowner, and is therefore an unenforceable penalty. Furthermore, it exceeds the BPA’s own Code of Practice. The BPA Code of Practice states:
19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. I therefore require Excel Parking Services Ltd to provide a detailed breakdown of how the amount of the charge was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimates of loss. POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss. I therefore respectfully request that my appeal is upheld and the charge dismissed.
Failure to comply with the Protection of Freedoms Act 2012, Schedule 4, paragraph 9.4
The operator has clearly failed to adhere to the lawful time period for delivery of the notice. The operator delivered the notice 57 days after the date of the alleged contravention.
The date of the alleged contravention is 18th July 2013 and the date of the notice is 11 September 2013 (55 days). According to sub-section 6 of the Act cited below, the notice is deemed to be delivered 2 days later. This makes 57 days between the alleged contravention and delivery of the notice.
This falls well outside the 14 day time limit specified below. The Protection of Freedoms Act 2012 is absolutely specific about the timescale that the operator must follow when issuing a notice to keeper. I refer you to the relevant section:
“9 (4) The notice must be given by-
(a) Handing it to the keeper, or leaving it at a current address for service for the keeper so that it is delivered to that address within the relevant period; or
(b) Sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.”
The operator issued a notice to keeper, knowingly, in breach of the Protection of Freedoms Act 2012, failing to adhere to the lawful notification time period. As the Notice to Keeper is not compliant with POFA 2012, the operator cannot charge the keeper, only the driver. As the keeper of the vehicle, I decline, as is my right, to name the driver. As the operator has not named the driver or provided any proof who the driver is, they cannot pursue this charge, and I am therefore not legally liable at all for the charge. I therefore respectfully request that my appeal is upheld and the charge dismissed.
Thanks for reading, and for any help you can give!
Here's the context:
The car (leased company car) was parked in Smyth Street private car park in Wakefield City Centre in mid July this year. A ticket was purchased - the driver is sure an overpayment was made, and the car left after 187 minutes. On September 13th (!) we received a PCN which states the car stayed 187 minutes, and shows photos of it arriving and leaving. Any text on the photos is completely unreadable. It doesn't state how much was paid, or how long the alleged overstay was. (Given the lengthy delay, the ticket is no longer in existence.)
We contested on these grounds, and also on the grounds that we received the NtK after 14 days. We have received a reply rejecting the appeal, giving no evidence of amount paid or length of supposed overstay. It also claims "We would like to advise that we have sent the PCN within the 14 days from from the time of issue and have therefore adhered tot he terms and conditions of POFA. As this was a Hire and lease vehicle the PCN was sent to the registered keeper of the vehicle and it has taken time for us to receive your details from the Hire and Lease company. We would therefore like to confirm that we have sent the PCN within the 14 days of issue of the PCN."
However, I understand that I am the registered keeper of the vehicle (the Hire and Lease company are the owners), and therefore should have received the PCN within 14 days of the alleged contravention. Am I correct?
Here's the POPLA appeal I've written:
I am the registered keeper of vehicle registration xxxxxxx and I contend that I am not liable for the parking charge issued by Excel Parking Services Ltd on 18th July 2013. I wish to appeal against the PCN on the following grounds.
1. The vehicle was not improperly parked
2. No Creditor identified on the Notice to Appellant
3. Charge not a genuine pre-estimate of loss
4. Failure to comply with the Protection of Freedoms Act 2012, Schedule 4, paragraph 9.4
The vehicle was not improperly parked
A ticket was purchased from the pay and display machine. The driver returned within the time paid for. However, as the notice arrived with me (the keeper) 57 days after the alleged contravention, the evidence no longer exists. Excel Parking Services Ltd have provided no evidence of how much money was paid for parking, and no evidence of how long the alleged infringement was. The only evidence provided is a photograph of the car arriving and leaving, with unreadable data alongside the image. Under The Protection of Freedoms Act 2012, para 9) 2), the Operator must c) describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable; (and) (d) specify the total amount of those parking charges that are unpaid. The information in bold is not in the notice, and therefore the notice is not compliant with the Act. I therefore respectfully request that my appeal is upheld and the charge dismissed.
Notwithstanding the above, I also request that you consider the following points:
No Creditor identified on the Notice to Appellant
Failing to include specific identification of ‘the Creditor’ is misleading and does not comply with paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012: identify the creditor and specify how and to whom payment or notification to the creditor may be made. Whilst the Notice has indicated that the operator requires a payment to Excel Parking Services Ltd, there is no specific identification of the Creditor who may, in law, be Excel Parking Services Ltd or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that ‘The Creditor is…’ and the Notice does not. POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 9 it must, as with any statutory provision, comply with the Act. As the Notice was not compliant with the Act, it was not properly issued. I therefore respectfully request that my appeal is upheld and the charge dismissed.
Charge not a genuine pre-estimate of loss
The demand for £100 is punitive, unreasonable, exceeds an appropriate amount, has no relationship to the loss that would have been suffered by the Landowner, and is therefore an unenforceable penalty. Furthermore, it exceeds the BPA’s own Code of Practice. The BPA Code of Practice states:
19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. I therefore require Excel Parking Services Ltd to provide a detailed breakdown of how the amount of the charge was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimates of loss. POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss. I therefore respectfully request that my appeal is upheld and the charge dismissed.
Failure to comply with the Protection of Freedoms Act 2012, Schedule 4, paragraph 9.4
The operator has clearly failed to adhere to the lawful time period for delivery of the notice. The operator delivered the notice 57 days after the date of the alleged contravention.
The date of the alleged contravention is 18th July 2013 and the date of the notice is 11 September 2013 (55 days). According to sub-section 6 of the Act cited below, the notice is deemed to be delivered 2 days later. This makes 57 days between the alleged contravention and delivery of the notice.
This falls well outside the 14 day time limit specified below. The Protection of Freedoms Act 2012 is absolutely specific about the timescale that the operator must follow when issuing a notice to keeper. I refer you to the relevant section:
“9 (4) The notice must be given by-
(a) Handing it to the keeper, or leaving it at a current address for service for the keeper so that it is delivered to that address within the relevant period; or
(b) Sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.”
The operator issued a notice to keeper, knowingly, in breach of the Protection of Freedoms Act 2012, failing to adhere to the lawful notification time period. As the Notice to Keeper is not compliant with POFA 2012, the operator cannot charge the keeper, only the driver. As the keeper of the vehicle, I decline, as is my right, to name the driver. As the operator has not named the driver or provided any proof who the driver is, they cannot pursue this charge, and I am therefore not legally liable at all for the charge. I therefore respectfully request that my appeal is upheld and the charge dismissed.
Thanks for reading, and for any help you can give!
0
Comments
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However, I understand that I am the registered keeper of the vehicle (the Hire and Lease company are the owners), and therefore should have received the PCN within 14 days of the alleged contravention. Am I correct?
Well they had to get the first letter to the address given by the DVLA, by day 15. So if the lease firm are registered as keeper at the DVLA then Excel have (perhaps?!) met that deadline IF the lease firm did get it by day 15 (did you check? The lease firm probably date stamped it on receipt)?
To cover yourselves against the PPC saying you aren't actually 'the registered keeper at the DVLA' as part of their evidence to POPLA, I would change this at the start:
''I am the registered keeper of vehicle registration xxxxxxx''
to
''I am the keeper of vehicle registration xxxxxxx within the meaning defined in POFA 2012 and as such am entitled to appeal this ticket.''
Having said that I would still leave in your point about the 'late NTK' because every point sets a PPC up for a fall if they do not address it! Check with the lease firm though to see if they got theirs by day 15 - and if not ask for a fax or scan of it!
I couldn't see the usual 'not the landowner and no title in this car park so no legal standing to make contract with drivers nor to pursue charges in the courts in their own name...blah, blah' as you will find in some other examples on threads or by searching the forum.
And you might want 'no contract formed with the driver to pay this charge because the driver had already fulfilled the requirements of the only possible 'contract' (denied anyway as Excel have no legal title in this car park and cannot offer parking spaces) which was to pay and display. So this allegation fails to fulfil the basic requirements of a contract, i.e. no offer/consideration/acceptance existed in relation to this charge. As the keeper I have no idea what the allegation is even supposed to be, seeing as the machine produced a ticket which covered the parking time. The Notice to Keeper is not helpful in explaining any basis for any breach allegation; the keeper should not have to guess what contravention is alleged just because some photos of the vehicle are produced.'
And we normally suggest a short but sweet criticism of the signage at the entrance and around the car park alleging that the driver did not see any entrance signs and so as the keeper, I can only conclude that Excel's signage at this site is inadequate and not compliant with the requirements of section 18 and Appendix B of the BPA code of practice. {you say this EVEN IF YOU HAVE NO CLUE ABOUT THE SIGNS, to make Excel spend time & money as they'd have to produce maps and evidence which could be wrong/missing!}.
Every point you make, forces them to try to rebut.
If you have to shorten the appeal to fit it in the online appeal box word-count you could remove the paragraph 9 quote and just refer to it only. POPLA know what you mean by 'paragraph 9 of Schedule 4 of POFA 2012'.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Here's an update and the decision made by POPLA:
I made the alterations suggested by Coupon-mad (thank-you), and sent off the appeal. On 13th December, Excel sent us their evidence - the deadline for them to do so. In the evidence, they gave the answers we had been waiting for in relation to the length of stay and payment given. 2 hours of parking cost £2.40, 4 hours cost £3.60. £3.50 had been paid and the car stayed for 187 minutes. So for the sake of 10p, they were chasing us for £100! They also claimed that the registered owner had admitted to driving the car and was therefore liable - that hadn't happened. We were too late to respond to the evidence through POPLA, so emailed them with our comments, and they added it to the file.
Today we received the decision - our appeal was upheld on the grounds that the charge was not a genuine pre-estimate of loss - no comments were made about any of the other aspects of the appeal. Final paragraph reads "I find that the parking charge sought is by way of damages. I also find that the damages sought on this particular occasion do not amount to a genuine pre-estimate of loss."
I'm glad I spent the time working on the appeal, and grateful for the help. But will be very careful where the car is parked in future!0 -
excellent news, a happy new year then
could you please add your redacted reply to the SUCCESSFUL APPEALS AT POPLA sticky thread at the top of the page ?
thanks0 -
Here's an update and the decision made by POPLA:
I made the alterations suggested by Coupon-mad (thank-you), and sent off the appeal. On 13th December, Excel sent us their evidence - the deadline for them to do so. In the evidence, they gave the answers we had been waiting for in relation to the length of stay and payment given. 2 hours of parking cost £2.40, 4 hours cost £3.60. £3.50 had been paid and the car stayed for 187 minutes. So for the sake of 10p, they were chasing us for £100! They also claimed that the registered owner had admitted to driving the car and was therefore liable - that hadn't happened. We were too late to respond to the evidence through POPLA, so emailed them with our comments, and they added it to the file.
Today we received the decision - our appeal was upheld on the grounds that the charge was not a genuine pre-estimate of loss - no comments were made about any of the other aspects of the appeal. Final paragraph reads "I find that the parking charge sought is by way of damages. I also find that the damages sought on this particular occasion do not amount to a genuine pre-estimate of loss."
I'm glad I spent the time working on the appeal, and grateful for the help. But will be very careful where the car is parked in future!
Brilliant result, and an excellent summation of the scam this is all about.
GPEOL = 10p. Penalty £100. Just an absolute scandal of epic proportion.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.#Private Parking Firms - Killing the High Street0
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