POPLA appeal excel stockport

yorkshiredoc

Hi guys

I first posted for advice back in November after getting a PCN through the post. I sent in my appeal to excel and perhaps unsurprisingly have been rejected. Theyve sent me the stuff through for the POPLA process, all just within the 35 days they;re supposed to I think.

Ive been looking at lots of threads on here and have cobbled something together which I hope works well as a first draft. Ive particularly borrowed from some recent POPLA things I saw on here which have won, so hoping that since my case is similar I will too!

Please let me know your thoughts....

Many thanks

Notice No......
Vehicle Reg......
Date & Time of Issue......

As the Registered Keeper of the above vehicle, I am appealing to POPLA after having my appeal direct to Excel Parking turned down, and am now being asked to pay charge of £100.

I want to appeal this charge and have it cancelled, and am supplying the following in support of my appeal.


1. Excel’s legal capacity to enforce/issue Parking Charge Notices.


In their correspondence with me, Excel have not produced any evidence to show that they have any proprietary interest in the Peel Centre car park in Stockport. Nor have they provided any evidence that they are lawfully entitled to demand money from a driver or keeper. As it appears that they do not own the land, nor have any interest or assignment of title of the land in question, it is assumed that they are merely agents for the owner or legal occupier. I contend, therefore, that they do not have the necessary legal capacity to charge the driver of a vehicle for using the car park.


I require that Excel provide a full, up-to date, signed and dated contract or agreement with the landowner . A signed witness statement stating that someone has seen a contract is not sufficient. The contract must state that Excel are entitled to pursue these matters through the issue of PCNs and through the courts. This needs to be an actual copy and not simply a document which claims that such a contract or agreement exists.


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


The PCN records the duration of stay at ... minutes, whilst the tariff set by the operator for a 1-2 hour stay is just £1. Excel is asking for a charge of £100. This far exceeds the usual pay and display price. The charge cannot be construed as anything but a punitive penalty.

Following my appeal directly to Excel, they did not address this issue. They have not stated why they feel a £100 charge is an appropriate pre-estimate of loss. In fact, in their letter to me rejecting my appeal the only justification made is that British Parking Associations Code of Practice recommends a maximum of £100. It would seem this is the reason behind Excel’s ‘choice’ of penalty charge.

To justify this charge, I require that Excel supply a full breakdown of the costs they have suffered as a result of the car being parked at the car park. This breakdown must add up to £100. Normal expenditure that Excel incurs to carry on their business - their operational day-to-day running costs (e.g. provision of parking, parking enforcement, signage erection, salaries and office rent) should not be included in the breakdown; these are operational costs which Excel would suffer irrespective of the car being parked at that car park.

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

Therefore, this £100 charge does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have happened, the cost of parking enforcement would still have been the same. This has been quoted by POPLA itself in adjudication. The amount of the “penalty” imposed is completely disproportionate to any alleged “loss” by Excel. It is, therefore, punitive and contravenes the Unfair Contract Terms Act 1997.

I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance. As such, the charge that was levied is punitive and therefore void (i.e. unenforceable) against me.


I also refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC (EWCA Civ 186 [2013]). This case determined the actual nature of Private Parking Charges. It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The Court ruling was "...that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice. This provides a means of payment at the point of supply, and a means to account to HMRC for the VAT element of the charge. No VAT is itemised on this PCN. It must, therefore, be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.



3. Trespass


Without a contract, the most appropriate offence would be of civil trespass. If this was the case, the remedy would be to award damages to Excel. Given that there was no damage to the car park, the car park was not full when my car entered or left and Excel do not own the car park, there was no loss to Excel.





4. Unlawful Penalty Charge


Excel alleges a breach of contract. However, without any demonstrable loss or damage, it can only remain a fact that this 'charge' is an attempt to dress 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) OB Services v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

On this basis, this 'charge' fails to meet the standards set out in paragraph 19 of the British Parking Association’s Code of Practice. It also fails to comply with the CPUTR 2008, the UTCCR 1999, the Equality Act 2010 and basic contract law.




5. 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. In particular, Excel should surely be able to demonstrate that these cameras are accurate as far as measuring the time any car spends in this car park, rather than simply photographing entrances and exits and belatedly accrediting time signatures to these occurrences. Any such cameras should surely be calibrated in order to be able to consistently and accurately measure this.



6. Unclear And Non-Complaint Signage intended to lead to apparent grounds for a PCN.

The driver in this instance was unfamiliar with the Peel Centre car park and the fact that it is ‘pay and display’, as a majority of these out of town centres provide free parking. Given this fact, the onus is clearly on Excel to leave the driver in no doubt of the need to purchase a ticket for this particular car park.

Due to their high position, bright colours, distracting pictograms and the barely legible size of the small print, the signs in this car park are very hard to read and understand, especially at the point of driving into the car park off the busy dual carriageway.

These signs and any core parking terms Excel are relying upon were too small for any driver to see, read or understand when concentrating on driving. I request that POPLA should check the Operator's evidence and signagemap/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs and machines in that car park (wording,position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011

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 these terms. This means that I and the POPLA adjudicator would be led to believe that a conscious decision was made, by the driver, to park that day 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.


I also would like to point out that Excel Parking continue to use a APNR system, instead of using a method of barriers at entrance and exit to ensure all drivers HAVE to pay before leaving the car park. This leads me to be highly suspicious that in fact both the signage and method of parking payment are designed in order to ‘catch out’ unaware shoppers, who will then be sent PCN’s demanding payment that far exceeds the actual pay and display charge.


7. No contract with the driver


The Operator refers in their correspondence to “contractually agreed Terms and Conditions”, however, I assert that there is no contract between Excel Parking Ltd and the driver.

I challenge the Operator to provide strict and robust proof that a contract existed between Excel Parking Ltd and the driver on the day in question, which meets all the legal requirements of contract formation, such as a meeting of minds, agreement, certainty of terms etc. If not all of these requirements were satisfied, any contract would be deemed “unfair” in the Unfair Terms in Consumer Contracts Regulations 1999.



8. Unfair terms


Finally, I request that POPLA consider that the charge that was levied is an “unfair term” (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at:


Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation".


Schedule 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer"

Schedule 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term"."

I present this to POPLA and await your decision with your interest.

Big_Bad_Dad

Hi there, concerning 2 and 4 and everywhere else dealing with "penalty", it is best to avoid that shady issue and stick to "not a genuine pre-estimate of loss". It has technically been proven that one does not need to constitute the other, and losses argument is a dead cert winner all by itself. By mixing it with "penalty" you could ruffle your own chances.

yorkshiredoc

Okay, thanks for that thought, I'll change that bit about punitive penalty etc then. I guess I should just refer to the 'charge' then, instead of using 'penalty'?

Big_Bad_Dad

I've clicked your Thanks box precisely because you have provided me with the information I have been looking for now quite some time, Unfair Terms in Consumer Contracts Regulations 1999 (Schedules 2 and 5). Were these to be discarded by any County Court Judge, they most certainly cannot be overlooked by a Circuit Judge handling appeals since this is codified law.

Redx

agreed, its actually against the BPA CoP to use the words FINE or PENALTY and so pointless stating those words unless the PPC used them

so as above, use the words which popla use , to remove any doubt

Redx

also, add a short bullet point summary at the top, before the expanded appeal points, like in this template https://forums.moneysavingexpert.com/discussion/4816165

also, trespass would be on behalf of the landowner, not excel

Big_Bad_Dad

...therefore any fantasy related by Parking Eye about their victories over Keven Shelley (over whom it is fair to say they can NEVER again triumph and I am sure it is a matter of time before revenge will come) and others, were all subject to poor judgement in violation of 5(2) which expressly clarifies and terms on signage are not the basis of a contract.

Redx

2 excel ones listed here via the newbies thread

https://forums.moneysavingexpert.com/discussion/comment/62180281#Comment_62180281