parking charge leeds crown point (excel parking)

turbonutter

Hi people ive been messing with a template i found on the forum, would anyone here be willing to have a second opinion on it for me if i send it to you?

bod1467

Just post it here (redacting any personal/identifiable info).

turbonutter

Date : xxxxxxx
Car Reg : xxxxxxx
Location: : xxxxxxx
Date of PCN issue : xxxxxxx
PCN Number : Xxxxxxxxx

POPLA Verification Code: xxxxxxx


Dear POPLA Assessor,

I am writing as the registered Keeper of the above vehicle on the alleged contravention date and I'm writing this to appeal a charge sent to me by excel parking services.

I would like to appeal this notice on the following grounds:

Charge not a genuine pre-estimate of loss
Unlawful penalty clause
No authority to levy charges
Business Rates & Business Legitimacy
information given in the notice to keeper under 8(c) is not the same as that given in the notice to driver



1. Charge not a genuine pre-estimate of loss

The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The excel parking services signs states that a PCN would be issued for a “failure to comply” with the terms of parking, which indicates that the parking charge represents damages for a breach of the parking contract.

Accordingly, the parking charge must be a genuine pre-estimate of loss. excel parking services has not provided any evidence as to how and why the parking charge is a genuine pre-estimate of loss. Therefore the parking charge is punitive and an unenforceable penalty charge.

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.“
and
“19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. “

I put excel parking services to strict proof that that their charge represents a genuine pre-estimate of loss. To date excel parking services have refused to provide me with a detailed breakdown of how the amount of the “charge” was calculated in the form of documented, specific evidence applicable to this car park and this alleged incident. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business 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 in this pre-estimate of loss.

I therefore respectfully request that my appeal is upheld and the charge dismissed.


2. Unlawful penalty clause - revenue for excel parking services

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket, as was found in the case of Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011), in Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).

This transparently punitive charge by excel parking services is a revenue-raising exercise and is therefore unenforceable in law. excel parking services own website is damning in this regard.

So this is (as is proven by the Operator's own website) a revenue-raising scheme disguised as a 'parking ticket' - so in fact it is an unenforceable penalty.

I therefore respectfully request that my appeal is upheld and the charge dismissed.



3. No authority to levy charges

A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner’s behalf and enforce for breach of contract.

excel parking services must produce evidence to demonstrate that it is the landowner, or a contract that it has the authority of the landowner to issue charge notices at this location. I believe there is no contract with the landowner/occupier that entitles ''excel parking services'' to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore has no authority to issue charge notices.

I put excel parking services to strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that ''excel parking services'' produce to POPLA the contemporaneous and unredacted contract between the landowner and excel parking services. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between excel parking services and the owner/occupier, containing nothing that excel parking services can lawfully use in their own name as a mere agent, that could impact on a third party customer.

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 therefore respectfully request that my appeal is upheld and the charge dismissed.



4. Business Rates & Business Legitimacy

As this car park is now being used for the purpose of running a business by ''excel parking services'', which is entirely separate from any other businesses the car park services, and generates revenue and profit for excel parking services, I do not believe that excel parking services has the necessary planning permission or have declared the running of their business venture at this location to the Local Valuation Office and Local Authority for the purpose of the payment of Business Rates.

I put excel parking services to strict proof that the necessary planning permission is in place, and that they have registered the business they are operating at crown point retail park leeds with the Valuation Office and to provide proof that Business Rates are being paid to the Local Authority, or to provide proof or explanation of their exemption from such Business Rates. Failure to do so indicates that they are not operating a legitimate business from the premises.

I therefore respectfully request that my appeal is upheld and the charge dismissed.


5. Information given in the notice to keeper under 8(c) is not the same as that given in the notice to driver

Notice to driver states that the driver ''walked off site'' and not as below
whereas the Notice to keeper states that the driver was ''parked in a restricted area of a car park''


This concludes my appeal.

Kind regard

turbonutter

can anyone on here have a quick look at my post and point out any edits where needed kind regards.

Guys_Dad

I quite like that and usually would advise against business rates etc, but keep it in, although whether or not they are actually paying business rates is not anything to do with POPLA.

You should try to check with the council to see if planning permission was needed or granted.

Coupon-mad

Point 4 is not needed at all IMHO. You are never going to win a POPLA appeal on Business rates arguments any more than VAT arguments nor even (IMHO) Planning permission. All red herrings I think, unless it's a site where you have evidence of a lack of same.

Replace it with an 'Unclear signage - no contract formed with the driver' paragraph which you will find loads of examples of in the How to win at POPLA link already supplied by Welsh Exile. You will need to add to it that the signs do not include any site boundary so if the allegation on the PCN is to apply then the signage has failed to form any clear contract on that point. 'Where does the site begin and end' was a fundamental point raised by the Judge in VCS v Ibbotson which was a 'left the site' allegation from the same parking management firm owner, Simon Renshaw-Smith (owner of Excel).

You also need a stronger paragraph like this, instead of point 5:

NTK not properly given (fundamental breach of POFA 2012)
As the Keeper, I am not liable for any charge if no Notice to Keeper has been properly 'given' under POFA 2012 Schedule 4 paragraph 8:
''A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met...it must:
(c)state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f)''

As the NTK states a completely different contravention than the Notice to Driver apparently did, it is a nullity, meaning there is no 'keeper liability' established. In a previous ruling, 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 8 it must, as with any statutory provision, comply with the Act.''


And have a look at this one (below) as I think your 'no loss' and 'no contract with landowner' paragraphs need improving (I appreciate they've come from an older template). Your loss paragraph needs to cite Ibbotson as well because if there was any loss and if the allegation was 'left the site' then Excel failed to mitigate it if an employee thinks they saw the driver leave an imaginary site boundary:

https://forums.moneysavingexpert.com/discussion/comment/63857139#Comment_63857139

That one also has lots about unfair terms (penalty) which would link with your point 2. I think you need to beef that up and remind the POPLA assessor that it cannot be fair and transparent that you are expected to argue against two different contraventions alleged on the two notices so this must be an unenforceable unfair term. I would then quote the OFT stuff about unfair terms.

turbonutter

Coupon-mad how does the below paragraph look to you? Im just doing a bit at a time but all being well hope to send it by mid week:

Date : xxxxxxxx
Car Reg : xxxxxxx
Location: : xxxxxxxx
Date of PCN issue : xxxxxxx
PCN Number : xxxxxxxxxxx

POPLA Verification Code: xxxxxxx


Dear POPLA Assessor,

I am writing as the registered Keeper of the above vehicle on the alleged contravention date and I'm writing this to appeal a charge sent to me by excel parking services.

I would like to appeal this notice on the following grounds:

Charge not a genuine pre-estimate of loss
Unlawful penalty clause
No authority to levy charges
Business Rates & Business Legitimacy
information given in the notice to keeper under 8(c) is not the same as that given in the notice to driver



1. Charge not a genuine pre-estimate of loss

The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The excel parking services signs states that a PCN would be issued for a “failure to comply” with the terms of parking, which indicates that the parking charge represents damages for a breach of the parking contract.

Accordingly, the parking charge must be a genuine pre-estimate of loss. excel parking services has not provided any evidence as to how and why the parking charge is a genuine pre-estimate of loss. Therefore the parking charge is punitive and an unenforceable penalty charge.

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.“
and
“19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. “

I put excel parking services to strict proof that that their charge represents a genuine pre-estimate of loss. To date excel parking services have refused to provide me with a detailed breakdown of how the amount of the “charge” was calculated in the form of documented, specific evidence applicable to this car park and this alleged incident. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business 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 in this pre-estimate of loss.

I therefore respectfully request that my appeal is upheld and the charge dismissed.


2. Unlawful penalty clause - revenue for excel parking services

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket, as was found in the case of VCS and ronald ibbotson in 2012.

This transparently punitive charge by excel parking services is a revenue-raising exercise and is therefore unenforceable in law. excel parking services own website is damning in this regard.

So this is (as is proven by the Operator's own website) a revenue-raising scheme disguised as a 'parking ticket' - so in fact it is an unenforceable penalty.

I therefore respectfully request that my appeal is upheld and the charge dismissed.



3. No authority to levy charges

A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner’s behalf and enforce for breach of contract.

excel parking services must produce evidence to demonstrate that it is the landowner, or a contract that it has the authority of the landowner to issue charge notices at this location. I believe there is no contract with the landowner/occupier that entitles ''excel parking services'' to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore has no authority to issue charge notices.

I put excel parking services to strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that ''excel parking services'' produce to POPLA the contemporaneous and unredacted contract between the landowner and excel parking services. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between excel parking services and the owner/occupier, containing nothing that excel parking services can lawfully use in their own name as a mere agent, that could impact on a third party customer.

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 therefore respectfully request that my appeal is upheld and the charge dismissed.



4. NTK not properly given (fundamental breach of POFA 2012)
As the Keeper, I am not liable for any charge if no Notice to Keeper has been properly 'given' under POFA 2012 Schedule 4 paragraph 8:
''A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met...it must:
(c)state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f)''

As the NTK states a completely different contravention than the Notice to Driver apparently did, it is a nullity, meaning there is no 'keeper liability' established. In a previous ruling, 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 8 it must, as with any statutory provision, comply with the Act.''


5. The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between excel parking services and the driver.
I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because excel parking services are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) excel parking services have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The only signs are up on poles with the spy cameras and were not read nor even seen by the occupants of a car.


6.Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999'
''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''
Test of fairness

''A term is unfair if:
Contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.

5.1 Unfair terms are not enforceable against the consumer.
9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''




This concludes my appeal.

Kind regards

turbonutter

can anyone online help me with the above popla appeal kind regards

hoohoo

Looks fine. Please come back once you have excels evidence pack to check if they are lying

Guys_Dad

Agree . It looks ok to me too.