IPC appeal PCN NW Limited

kirkbyinfurnesslad_2

dont concentrate to much on code of practice

More on loss/no contract , those issues and dont waffle, keep it succint

Kc85

Thanks- the letter from PCN has a BPA logo on it so don't know if to actually keep them points in?

Ok thanks will see what I can do- should I take the case law out relating to POPLA?

4consumerrights

Don't bother including anything re that point in post 30 it won't help your appeal anyway - especially as you didn't wait until the Ntk arrived.

Do you know what the signage states - i.e. failure to comply/breach of or a contractual term/

I would imagine it would be failure to display a valid permit - in which case your main argument is no GPEOL if contractual include both arguments.

The appeal needs to be rehashed somewhat.

It is pointless saying that you were the registered keeper as you already appealed as the driver (you should edit your post there and I'll delete this)

Main points:

The driver did not see any signage when entering or parking.
- dark and unlit.
- therefore no contract was formed.
The amount charged does not reflect a genuine pre-estimate of loss for the alleged breach.....etc.. Punitive and a penalty.
Subsequent visits revealed that there were two named companies on the signage (get photos if you can and include) therefore the creditor is not clearly identified.
Ask for a unredacted contract between landowner and PCN(NW).
Lack of proprietary interest in the land therefore PCN(NW) have no legal standing to pursue charges through the courts and acting as agents. include the PE/sharma case law.
The parking attendant (their employee) failed in legal obligation to mitigate the companies loss by showing you where you could park without incurring a parking charge. by the way what are they calling them CPN?? or PCN!
State that the letter received has the BPA logo on it - therefore this is a breach of unfair terms and consumer protection act - as it is misrepresentation of the appeals process open to you (you could complain here to the OFT and trading standards).

Have another go and upload again around the points above.
I don't think that the IPC consider breaches of their code of practice - for an appeal - this is inferred but not verified and was mainly a reference for you.

before posting your appeal check out this thread:
https://forums.moneysavingexpert.com/discussion/4859061

Kc85

Hi

To be honest I haven't been back to the car park since. sorry what is GPEOL?

when I first appealed I didn't admit to being a driver although I didn't wait for the NTK I did appeal at the keeper.

I've moved bit's wrong, re-worded slightly and added points but I will check the link before re-posting.

Thank you

Redx

all acronyms are explained in here https://forums.moneysavingexpert.com/discussion/4816822

PCN NW used to be in the BPA but have defected to the IPC (I believe)

hence they may still have paperwork with the logo on it

4consumerrights

GPEOL = genuine pre-estimate of loss - all in the newbie thread. It is a lot of information to take in at once and probably does need a couple of read throughs to digest.

In addition to my post above - and as per earlier post do keep in the part of the the OFT guidance for calculating parking charges.

Edit Redx crossover again - yes PCN (NW) were in the BPA but that does not excuse them now not to have compliant paperwork - very misleading.

Kc85

thanks, yes it gets slightly confusing!

Ok so I have had a go at moving points around, adding points in, slightly re-wording bits. I haven't completely re-written as I would probably make it worse! Thank for you help, here goes:



Companyin question: PCN (NW) Ltd

I am the registered Keeper of the above vehicle and I am appealing againstabove charge. I contend that I am not liable for the parking charge. On theabove date, I (the keeper of the vehicle) was issued with a CPN for parkingwithout a valid permit at St Helens College Brook Street Camp. There were nosigns near the car and no signs were observed on entry to the area. The signagewas extremely poor, with there most significantly not being any signs at allaround where the car was parked.

I challenged this notice on a number of issues. I then received a rejectionwith regards to the alleged contravention. Attached to the rejection was theIPC form and IAS number.


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

1. The contradicting and unclear signage which creates no contract between adriver and PCN (NW) Ltd Lack of signage
2. No contract with the site that permits levying charges- no legal status tooffer parking or enforcement charges.
3. Inappropriate parking charge, the amount demanded is not a GenuinePre-estimate of loss.
4. No breach/trespass

1. The contradicting and unclear signage which creates no contract between adriver and PCN (NW) Ltd Lack of signage

There is/was categorically no contract between the driver and PCN (NW) Ltd. Nosigns were observed. There were no large BPA standard signs when the car parkwas first entered therefore there was no idea of any alleged contract orrestrictions.



Asan AOS member, their entrance signage must be prominent and readable from aseated position, with terms & conditions in the driver's clear view onarrival when a vehicle first turns into a car park

I further note that PCN are required to provide repeater signs to ensuremotorists are under no doubt as to the fact that parking restrictions exist. Therewere no signs at all located near where the car was parked, nether are thererepeater signs detailing parking restrictions.

I require PCN (NW) Ltd to provide IPC with evidence that its signage iscompliant with both IPC’s Code of Practice, schedule 1 and BPA rules upon bothentry and where the car in question was parked, given PCN (NW) Ltd state theyare also a member of the BPA on their rejection letter.


2. No contract with the site that permits levying charges- no legal status tooffer parking or enforcement charges.

I doubt that PCN (NW) Ltd has the legal status and overriding right to pursueparking charge notices. I therefore require PCN (NW) Ltd to supply and IPC toreview:

[*]A copy of the current signed site agreement or contract with the landowner/occupier of that site and/ or
[*]Written authority from the land owner sufficient to establish the creditor within the meaning of the Protection of Freedom Act 2012, which establishes PCN (NW) Ltd with the express ability to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question.
[*]A copy of the wording of the current imposed permit scheme with proof that the landowner has agreed to/been informed about it.
[*] A current map of all the areas and bays of that car park where the permit scheme is and is not applicable, as agreed with the landowner/occupier.
[*] Contemporaneous photos of the actual signs on site


Furthermore, I require that the PCN (NW) Ltd show IPC proof that they have theright to charge and pursue motorists (including threats of debt recovery andcourt action).



Morespecifically pleasecheck whether PCN (NW) Ltd have provided a full copy of the actualcontemporaneous, signed & dated contract/ written authority with thelandowner/occupier (not just a signed slip of paper saying it exists or someonehas witnessed it) and check that it specifically enables this Operator topursue parking charges in their own name and through the court system. I believethat any contract is not compliant with the requirements set out in IPC’s or BPA’sCode of Practice.



It has also been widely reported that someparking companies have provided photocopied “witness statements” instead of therelevant contract. These highly questionable documents from parking operatorshave been exposed in the public domain as sometimes having had the date addedafter 'witness signature' by another person, adding a random date to suit acourt. These witness statements are therefore not relevant to a specific eventand the details are far too unreliable to confirm compliance of the contract asdefined in the BPA CoP and would fail to meet the level of certainty requiredfor a court decision. If PCN (NW) Ltd produce a 'witness statement' I contendthat there is no proof whatsoever that the alleged signatory on behalf of thelandowner has ever seen the relevant contract, or, indeed is even an employeeof the landowner. I require, if such a witness statement is submitted insteadof the landowner contract itself, that this is disregarded and that the ChiefAdjudicator is required to investigate this issue and consider carefully theserious irregularities known about these documents if the assessor in my caseis minded to consider one as evidence.





Itis my belief that PCN (NW) Ltd does not own this car park and are assumed to bemerely agents for the owner or legal occupier. In the PCN and in the rejectionletter, PCN (NW) Ltd have not provided me with any evidence that it is lawfullyentitled to demand money from a driver or keeper, since they do not own norhave any interest or assignment of title of the land in question.


I do not believe that the Operator has the necessary legal capacity to enterinto a contract with a driver of a vehicle parking in the car park, or indeedthe legal standing to allege a breach of contract. I refer the Adjudicator tothe recent Appeal Courtdecision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186[2013]): The principal issue in this case was to determine the actual nature ofPrivate Parking Charges. It was stated that: "If those charges areconsideration 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 ruling ofthe Court was that "I would hold, therefore, that the monies which VCScollected from motorists by enforcement of parking charges were notconsideration moving from the landowner in return for the supply of parkingservices." In other words, they are not, as the Operator asserts, acontractual term. If they were a contractual term, the Operator would have toprovide a VAT invoice, to provide a means of payment at the point of supply,and to account to HMRC for the VAT element of the charge. I assert that theserequirements have not been met. It must therefore be concluded that theOperator's charges are in fact damages, or penalties, for which the Operatormust demonstrate his actual, or pre-estimated, losses, as set out above.

3. Inappropriate parking charge, the amount demanded is not a GenuinePre-estimate of loss.

The demand for a payment of £100 as noted within the Parking Charge is apunitive amount that has no relationship to the loss that would have beensuffered by the Landowner. The BPA code of practice states:

“19.5 If the parking charge that the driver is being asked to pay is for abreach of contract or act of trespass, this charge must be based on the genuinepre-estimate of loss that you suffer.”

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



Thischarge does not represent a genuine pre-estimate of loss and therefore isunfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.PCN (NW) Ltd may try to allege their minimal signage creates a contractualagreement, but this is denied. In any case, PCN (NW) Ltd's letter clearlystates that this parking incident relates to an alleged 'breach of contract'(their words). So the entirety of the parking charge must be a genuine pre-estimateof loss in order to be possibly enforceable. PCN (NW) Ltd in this case cannotpossibly justify £100 as a genuine pre-estimate of loss. In addition to this from completingfurther research it has come to my attention that there are currently two differentcompanies listed on the signage. Therefore, if the driver is forming a contractit is unclear who they are forming it with. Furthermore, the creditor is alsonot clearly identified.



TheOffice of Fair Trading has also stated to the BPA Ltd that a 'parking charge'is not automatically recoverable simply because it is stated to be a parkingcharge, as it cannot be used to state a loss where none exists. Parking chargescannot include tax-deductible business costs for running a parking company, suchas site signage and maintenance, staff employment, membership fees, postage,etc. It shouldn’t be recoverable as it is being enforced purely as a penalty.Since there is no other income at this site, these PCNs represent the onlyprofit for PCN (NW) Ltd and it is clear that they cannot be operating at apermanent loss. I require PCN (NW) Ltd to provide a detailed breakdown of howthe amount of the 'charge' was arrived at. I am aware from court rulings thatthe cost of running the business may not be included in these pre-estimatelosses.



Finally,a third party agent cannot pursue such a charge anyway, as was found in ParkingEye v Sharma: Case No. 3QT62646 in the Brentford County Court 23/10/2013.District Judge Jenkins dismissed the case on the grounds that the parkingcontract was a commercial matter between Parking Eye and the landowner, anddidn’t create any contractual relationship with motorists who used the car park.I submit that this applies in this case as well.



Therewas no parking charge levied, the car park is “free”. On the date of theclaimed loss it was not at full capacity and there was no physical damagecaused. There can have been no loss arising from this incident. Neither can PCN(NW) Ltd lawfully include their operational day-to-day running costs in any'loss' claimed. I contend there can be no loss shown whatsoever; nopre-estimate (prior to starting to 'charge for breaches' at this site) has beenprepared or considered in advance.

The charge that was levied is punitive and therefore void (i.e. unenforceable)in this case. The initial charge is arbitrary and in no way proportionate toany alleged breach of contract. Nor does it even equate to local councilcharges for all day parking. This is all the more so for the additional chargeswhich operator states accrue after 28 days of non-payment. This would alsoapply to any mentioned costs incurred through debt recovery unless it followeda court order. I would question that if a charge can be discounted by 40% byearly payment that it is unreasonable to begin with.



IPC’sCode of Practice states that all parking charges must be reasonable; inaccordance with sufficient signage, which make it clear what the terms ofcondition of parking on the land are. As addressed previously within this letterPCN (NW) Ltd does not have sufficient signage within the car park, thusbreaching the code of practice of which there are a member and as such parkingcharges must be void.


4. No breach/trespass

If there was no contract, then at most the allegation can only be a civiltrespass. This is denied - however, for the avoidance of doubt, if PCN (NW) Ltddo now try to allege that this is the nature of this 'charge' then the driverwould be potentially only be liable for damages owed to the owner/occupier whomay have suffered a loss. Since no ‘damage’ occurred in the car park and alsogiven the fact that the car park was not completely full in the short time thecar was on site, there was in fact no loss at all and this charge is purely aprofiteering penalty, out of all proportion.



In addition, I would also like to point out that no barriers were in placerestricting entrance to the car park nor was anyone stopping cars entering thecar park via the entrance that does not divert to the immediate left. The parking attendant who advised his name was JamesSimmons but did not show any Company documentation to confirm his name, whomthe PCN was discussed with at the time, did not at any point advise anyone onthe car park or entering where they could or could not park, nor was heoperating the barrier system to restrict access, which was within his remit.James Simmons when questioned following the PCN being attached to thewindscreen only advised that he didn’t mind if cars were parked in an unallocatedbay as long as they were in the permitted area.



Ido not believe that on the day in question Mr Simmons maintained a professionalstandard of behaviour when carrying out his duties, or complied with the law,advising to park in an unmarked bay as long as it was within a permitted area.Furthermore Mr Simmons will have been aware of the car entering via theentrance in which the barrier should have been in operation, to then issue aticket as he stated was 15 minutes before a free parking period is in factacting in a predatory manner to lure drivers into incurring parking charges.Thereby Mr Simmons failed in his legal obligations to mitigate the Companiesloss by advising where motorists could park without incurring a parking charge.

With all this in mind, I require IPC to inform PCN (NW) Ltd to cancel the CPN.

kirkbyinfurnesslad_2

Right you need to remove about 40 % of this, its got far to much waffle in it
Remove all stuff related to the BPA

Concise and to the point, dont waffle on about stuff that moves away from the points you are making

Redx

also, copy to notepad and save, then copy and paste from notepad onto here so you dont get all those formatting issues

Kc85

Oh ok thank you