Middlesbrough Leisure Park - Excel £60/100 fine

Coupon-mad

james915 wrote: »

Thanks for your help both of you. So I should do an appeal as the driver and hope for the best? Is there anything else I can do after that or would I just have to pay the invoice? Could I go on to do a POPLA appeal is this one gets rejected? Many thanks

http://i.imgur.com/SCvIbeU.jpg

http://i.imgur.com/H7dmpij.jpg

http://i.imgur.com/HvEiehy.jpg

I see from the sign that this is Excel - so easy peasy to beat at POPLA if you follow our advice in the NEWBIEs thread post #3 'How to win at POPLA'.

james915

They have given me a POPLA code at the end of a 2 page appeal rejection letter! Any advice on how to move forward? Many thanks people

Hot_Bring

james915 wrote: »

They have given me a POPLA code at the end of a 2 page appeal rejection letter! Any advice on how to move forward? Many thanks people

Yes - in the Newbies thread about three pages down is a link to "How to win at POPLA". Read that, construct your appeal and post it here for checking.

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

james915

I was thinking about using the POLPA template that was in the stick forum as it is made for excel and basically states everything that I need?

forums.moneysavingexpert.com/showthread.php?t=4836836

I would also add to the POPLA this point.
"The signage was not compliant with the BPA Code of Practice so there was no valid"

I have already admitted to being the driver (for reasons stated in the thread) what else should I include in my POPLA?

Picture of cinema ticket (as evidence of being a customer) pictures of signage? not sure what else to add or how to word it, many thanks for your kind help

ColliesCarer

Here's the clicky link for the thread you mean

https://forums.moneysavingexpert.com/discussion/4836836

I presume you mean the version in Post #20 of that thread

As yours was a windscreen ticket the section on ANPR will not be relevant.
Also the car park the above appeal was for is a Pay & Display whereas it sounds like the leisure centre car park was free - if so make sure you mention that in the no gpeol point.

Coupon-mad

james915 wrote: »

They have given me a POPLA code at the end of a 2 page appeal rejection letter! Any advice on how to move forward? Many thanks people

Hmmm...forgive me for pointing out that right above your post, you'd already been directed to where to look:

Coupon-mad wrote: »

easy peasy to beat at POPLA if you follow our advice in the NEWBIEs thread post #3 'How to win at POPLA'.

Picture of cinema ticket (as evidence of being a customer)

If you look at the NEWBIES thread as to what wins at POPLA, you will see that sort of detail is completely irrelevant.

And you don't have to chose an EXCEL example! Choose one that's similar to your ticket, not one that happens to be Excel when it isn't even the same sort of ticket. As ColliesCarer says, yours wasn't an ANPR camera postal ticket so that's not the same as your case. Please stop only looking for Excel examples and look for normal windscreen ticket ones (no ANPR paragraph). For example, many people beat UKPC on windscreen tickets all the time, or PCM, any of those would be more relevant to search for! The words 'left site POPLA' would be keywords to search to find a windscreen PCN POPLA appeal relating to a 'left site' allegation.

Or even better, write your own like these NEWBIES did:

https://forums.moneysavingexpert.com/discussion/4916007 Excel, but re an ANPR postal PCN. The OP has made fun if this all the way through and written their own POPLA appeal.

https://forums.moneysavingexpert.com/discussion/4911394 Various NEWBIES who never even started a thread, just followed the easy info and wrote their own versions for POPLA.

We can help you further it you draft a relevant POPLA appeals and then show it to us to fine tune for you - it must be based on a typical 'left site' POPLA appeal that you can find by doing the search I suggested in bold above. The 'search this forum' heading is just about the NEWBIES sticky, next to 'forum tools' in the small heading above the threads.

I am minded to revisit the 'How to win at POPLA' link when I have time and delete them all & just create one or two that DON'T state which PPC it was...it is pointless people looking merely at an example that relates to the same PPC when other details are wrong, or giving up because they don't find a spoon-fed template letter for 'their' PPC. I do detest templates anyway - for POPLA stage at least - the template 'first appeal' works well but a POPLA appeal needs more input from the person who got the ticket.


HTH

james915

I am off on holiday in the next few days and need to get my POPLA sent off before I go as I understand it must be sent by letter only and not through email?

This is my first draft, can I get rid of / add any relevant information that I may of missed out?

Thanks in advance



Dear POPLA adjudicator,
POPLA CODE xxxxxxxxxx


I am writing to appeal against a parking charge levied by Excel ParkingServices Ltd on DD/MM/YYYY. I was the driver of the vehicle concerned on theday in question.

The grounds for my appeal are as follows:

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

2. The £60/100 charge isgrossly disproportionate and not a genuine pre-estimate of loss

3. Unclear and non-compliant signage, forming nocontract with drivers & Breaching BPA CoP

Excel’s legal capacity to enforce/issueParking Charge Notices

In their correspondence with me, Excel have notproduced any evidence to show that they have any proprietary interest in thecar park in Middlesbrough. Nor have they provided any evidence that they arelawfully entitled to demand money from a driver or keeper. As it appears thatthey do not own the land, nor have any interest or assignment of title of theland in question, it is assumed that they are merely agents for the owner orlegal occupier. I contend, therefore, that they do not have the necessary legalcapacity to charge the driver of a vehicle for using the car park.

To meet my initial request, I still require sight of a full copy of the actualcontemporaneous, signed and dated site agreement/contract with the landowner(and not just a signed slip of paper saying that it exists).
Failure to provide this will be unacceptable. A witness statement is often
supplied and signed by the landowner (or their agent) to confirm such a
contract is in place. A witness statement will be unacceptable for the
reasons shown below:

Some parking companies have provided “witness statements” instead of therelevant contract. There is no proof whatsoever that the alleged signatory hasever seen the relevant contract, or, indeed is even an employee of thelandowner. Nor would a witness statement show whether there is a payment madefrom either party within the agreement/contract which would affect any 'loss'calculations. Nor would it show whether the contract includes the necessaryauthority, required by the BPA CoP, to specifically allow EXCEL to pursue thesecharges in their own name as creditor in the Courts, and to grant them thestanding/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was'not valid evidence'. This witness statement concerned evidence which couldhave been produced but was not. So if the operator produces a witness statementmentioning the contract, but does not produce the actual un-redacted contractdocument, then POPLA should be consistent and rule any such statement invalid.

Recent evidence has emerged into the public domain which apparently shows aLandowner (or their agent) signing and returning a Witness Statement without adate, as requested by a PPC. This would allow a PPC to use the same WitnessStatement to be used in future appeals without involving the Landowner. It hasbeen suggested that if this is true, then this practice is illegal and couldpossibly amount to fraud, which is punishable by large fines, imprisonment, orboth.

So I require the un-redacted contract for all these stated reasons as I contendthe Operator's authority is limited.

The £60/100 charge is grossly disproportionate and not a genuinepre-estimate of loss

The car park in question is free to park in; if thedriver did not have to pay to park, how can Excel justify their £60/100 chargefor the alleged contravention? I refer POPLA to the case of Vehicle ControlServices Ltd vs Mr R Ibbotson (16th May 2012) which found that general businesscosts cannot constitute a loss. The amount of the "penalty" imposedis completely disproportionate to any alleged "loss" by Excel. It is,therefore, punitive and contravenes the Unfair Contract Terms Act 1997.

Excel notices allege 'breach of terms/failure to comply' and as such, thelandowner/occupier (not their agent) can only pursue liquidated damagesdirectly flowing from the parking event. I contend there can be no loss shownwhatsoever; no pre-estimate (prior to starting to 'charge for breaches' at thissite) has been prepared or considered in advance. As such, the charge that waslevied is punitive and therefore void (i.e. unenforceable).

I also refer the Adjudicator to the recent Appeal Court decision in the case ofVehicle Control Services (VCS) v HMRC (EWCA Civ 186 [2013]). This casedetermined 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 willnot be." The Court ruling was "...that the monies that VCS collectedfrom motorists by enforcement of parking charges were not consideration movingfrom the landowner in return for the supply of parking services." In otherwords, they are not, as the Operator asserts, a contractual term. If they werea contractual term, the Operator would have to provide a VAT invoice. Thisprovides a means of payment at the point of supply, and a means to account toHMRC for the VAT element of the charge. No VAT is itemised on this PCN. Itmust, therefore, be concluded that the Operator's charges are in fact damages,or penalties, for which the Operator must demonstrate his actual, orpre-estimated, losses, as set out above.



Unclear and non-compliant signage, forming no contract withdrivers & Breaching BPA CoP

Excel has stated within their appeal rejection letterto me the following:-

“Our signs are fully compliant with the requirements as outlined within the BritishParking Association’s Code of Practice; and we maintain that it is the driver’sresponsibility to ensure that they adhere to the Terms and Conditions”

None of the signage within the car park displayed the BPA logo, nor that thecar park is private.

The BPA CoP (Version 3, June 2013) clearly states that signage must be
compliant, to which Excel state they are. I disagree due to reasons explainedbelow:

Thesignage at the car park does not meet the requirements set out by the BPA.According to their code of practice, appendix B page 27 (see attached for acopy of page 27), a standard form of entrance sign must be placed at theentrance to the parking area. It states that:

[*]The AOS roundel must always be shown on the sign
[*]The operator must always mention that terms and conditions apply and say where to find more details about them
[*]There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision.

“This blue rectangle with the ‘P’ symbol can be leftout if public parking is not invited and it is trespass you are managing.However, the AOS roundel must always be shown on the sign. If you do not havethe ‘P’ symbol, you may move the AOS roundel to the bottom of the signalongside the operator’s name. You must always mention that terms andconditions apply and say where to find more details about them”


In the BPA CoP the ‘entry sign’, which must clearly state that this is a
PRIVATE CAR PARK and that there are terms and conditions which must be visibleto and readable by a driver approaching the entrance to the car park whenapproaching on a road, looking straight ahead. The entrance sign did notconform to this by reason of:

1. A driver approaching the car park would only be able to see the entrancesign if they stopped on the single lane road and turned their head to the left whilststill driving forward – clearly by doing this the driver would be committing acontravention of the highway code and putting his/her self, their passengersand 3rd parties at risk;
2. The entrance sign does not state it is a private car park;
3. No reference to Terms and Conditions;
4. No BPA logo.

For the avoidance of doubt, the driver could not read the entry sign withoutturning their head a full 90 degrees to the left as the car park was
entered.

A further non-compliance to the BPA CoP is:-

• No signs show Excel Adhere to the BPA CoP;

The signage within the car park states the following:

“Failure to comply with the following will result in a parking charge noticebeing issued and a charge of £100 being enforced, discounted to £60 if paymentis received within 7 days of the notice issue date.”

This is clearly contrary to the BPA CoP, as it implies the £60 must be paidwithin 7 days and a further £40 added after this. The BPA CoP states a maximumcharge of £100 should be payable within 28 days, discounted by 40% if paidwithin 14 days. In either case, I still maintain this is an excessive charge.

I require Excel to provide to POPLA (as should be shown within their planning applications)the location and facing direction of all the signage, including the locationand facing direction of the mandatory entrance sign(s), which the driver shouldclearly see without causing danger and/or problems upon approach to the car park.



The BPA CoP clearly states, and this is mandatory, inSection 7.2:
7.2. The written authorisation must also set out:

A. the definition of the land on which you may operate, so that
the boundaries of the land can be clearly defined
b. any conditions or restrictions on parking control and
enforcement operations, including any restrictions on hours of operation
c. any conditions or restrictions on the types of vehicles
that may, or may not, be subject to parking control and enforcement
d. who has the responsibility for putting up and maintaining signs
e. the definition of the services provided by each party to the agreement
f. whether or not the landowner authorises you to take legal action to recovercharges due from drivers charged for unauthorised parking.

Furthermore, the Landowner must have agreed with Excel the fees for parking andany monies to be recovered in the event of failure to meet the requirements ofthe alleged parking contract. I require Excel parking services LTD to providePOPLA with proof about all matters mentioned above.



Based on the above grounds, I therefore respectfullyrequest that my appeal is upheld and the charge dismissed.



Yours,

(drivers name)

Coupon-mad

That will do the job, I would send it off electronically to POPLA so you know it's received - and enjoy your holiday!

james915

To appeal via email do I just need to write my appeal in an email attach all the pictures I want to include and just send it to


[EMAIL="appeals@popla.org.uk"]appeals@popla.org.uk[/EMAIL]

or is there a specific form I have to fill in and reply with?

Thanks for your help

ColliesCarer

On-line submission is via https://www.popla.org.uk - there is an on-line form to complete and a text box - but it has a character limit which your appeal will most likely exceed - therefore in the text box just enter say the opening paragraph and list of appeal points then add that the full body of the appeal has been attached as evidence in file (xxFilenamexx).
Then choose submit evidence and send your file as an attachment from there.

make sure every page has the Verification code and page no x of x no of pages (did mine as footer info in a word doc)