Excel invite me to their 'party'

kidstaxi

Hi everyone,

The story goes:-

In January 2014, I received an invitation from Excel to be a VIP guest at their Parking Managers’ Coffers Enrichment Fund evening in a West Yorkshire city. As I live near the city, I could have joined the party. To accept, all I had to do was pay them £60 registration fee if I replied within 14 days, or £100 if after this. If I didn’t bother to reply after 28 days, Excel would take to the opinion that I was a ‘party pooper’ and tell their friends to come and try to encourage me to attend (at an additional cost). If I chose not to join their ‘party’, I had to write to them within 28 days of the invitation explaining myself (in words of one syllable, or less). As I wasn’t bothered about attending, I responded by saying I would rather stick my head in a bucket of water for a full hour (I thought of something else instead of water, but I’m a nice person) and would they, pretty please, consider accepting my decline and cancel the invitation, or otherwise would they send me an invitation to those nice people at POPLA, who would be having an even better party in the next few months.



Hopefully the above will put a smile on your face. Now for the serious bits:-

I’m not going with the mitigation because I know from deeply inspecting the forum advice, it’s just not going to wash.

Basically, As keeper I did not name the driver, who parked on a Sunday in an empty car park in Yorkshire. The car park is surrounded by Council car parks where parking is free on Sundays. No visible entry sign from the direction the driver entered etc. Therefore, no ticket purchased (later found should have been around £2.50 for the 2 hours parked). APNR monitored, so no driver notice. PCN to keeper received within 14 days.

The ‘Breach’, as stated on the PCN to keeper, was ‘Breaching car park terms and conditions’ by not displaying valid ticket’.

Using recently updated advice from the forum (many thanks) I despatched by Proof of Posting a soft appeal heavily based on the template posted on the forum, including the 4 main items of:-

Not GPEoL;
No Creditor identified;
No authority;
Bad signage.

All I want is the POPLA code or possibly a cancellation (yeah, right!).

I received a postal acknowledgement to the soft appeal on the 14th day (don’t they like to string it out?) and I am awaiting their decision (and POPLA code). I will update the forum upon my return from holiday in 2 weeks time (which should then give me time to post the POPLA appeal on here for approval prior to submitting. Once agreed with the forum, it's onto the POPLA online appeal service.

I have lots of evidence, but I don't want to 'show my hand' at this stage. When I complete the POPLA appeal, I will put the evidence in there (plus copy and paste, with my amendments, the latest POPLA template).

Many thanks for a wonderful forum, and let's hope 'Another One Bites The Dust'.

Cheers,
Kidstaxi

HO87

What a pleasant change to read a post that has been thoughtfully written and with a decided element of humour. Encouragingly it is also a post written by someone who has clearly invested their own time in researching the issue and who now feels sufficiently empowered to deal with it - knowing that we are at their elbow. It is also a refreshing change, I have to admit, from the more usual clamorous posts of those who cannot manage 30 minutes of reading and expect us to conjure up an instant resolution for them.

Thanks kidstaxi. You've made my day.

Coupon-mad

Bumping this as a shining example to other NEWBIES - just read the forum & get on with the simple appeal needed!

HO87

Shamelessly bumping again

Coupon-mad

And again. This is what every newbie can do and it is SIMPLE.

kidstaxi

Hi everyone,

Just catching up whilst in sunny Spain. May I say many thanks to those who have given comments and 'thanks', it's appreciated. Yes, I did the research, and due to the tireless efforts of the forum members I was able to see just how these 'parking companies' actually operate. Indeed, a close relative had simply paid one of these 'fines' and I have now been able to advise how to respond in the future. I couldn't have done any of this without the dedication of the principle members of this forum. For this, you have my gratitude.

As posted, I will add further on my 'case' when I return to the UK.

Once again, many thanks,
kidstaxi

HO87

An excellent response - something that every Newbie should read - as if saving money wasn't incentive enough.

And a bump from Page 3.

kidstaxi

Hi everyone,

I have arrived back in good old Blighty and gone through all the rubbish the Royal Mail pushes through my letter box every day.

Guess what? Excel were so impressed with my reply that they have indeed invited me to attend the better party to be hosted by those super chaps at POPLA. I still have a couple of weeks, or so, to get my RSVP to POPLA and I am now starting on my "New Member's Speech", which will be attached to the RSVP. I have been well advised to prepare the speech with due care, and include any items that would impress them. This way I am sure to be given full membership of the 'Winners Club'.

It's PARTY TIME!
:bdaycake: :bdaycake:

As you have guessed, I'll soon be posting my appeal to POPLA on the forum for approval, prior to sending it via their online portal.

Once again, Many thanks for the tireless effort given by so few, without whom this forum would not be so successful in fighting these parking cowboys.

Cheers,
Kidstaxi

Hot_Bring

Just had to bump this again. Made me giggle - thumbs up to kidstaxi !

Stroma

Love it

kidstaxi

Hi everyone,

Well, I think I have the speech ready. I've used one of the latest templates as a base (and 'borrowed' quite a bit of it) plus, I've added quite a lot of my own stuff after further research and reading up on newer posts.

At first I was going to keep on not identifying where the car park is, but after 2 months, I suspect many others will have been 'got at'. I've tried to redact where I could. The car park is Smythe Street car park, Wakefield.

My basis is simple; I have created the POPLA appeal based on the usual sections, plus a few others to add to it. This is primarily because I would like other posters to see it and see if any parts of the appeal could be useful. One area I have looked into is the Planning Permission part. Many have commented that Planning Applications are irrelevant at POPLA, and this may be true. However, it still begs the question "could they legally issue PCN's using evidence gained from unapproved installations?". I leave this to the wider community to consider.

The other part heavily concentrated on is the BPA CoP. Does POPLA actually care about this? Does it form part of the decision process?

Failing the 2 parts above, there is still plenty to go at (particularly contract with landowner).

I will create a PDF document containing the appeal itself, plus 6 appendices. To make things readable on this forum, I have had to use Wordpad (which kills all my lovely formatting) and put the appendices on photobucket. I would be grateful if a kind forum member would copy the appendix section and convert the HTTP:.... links.

This will be a long post.

Dear POPLA Ajudicator,

POPLA CODE xxxxxxxxxx

As the registered keeper of the vehicle, registration number xxxx xxxx, I wish to appeal against the parking charge issued by Excel Parking.

My appeal is based on the following grounds:-


1. No breach of contract and no genuine pre-estimate of loss.

2. Contract with the landowner – no locus standi.

3. Notice to Keeper not properly given under POFA 2012 – no keeper liability.

4. Lack of photographic evidence and unreliable, unsynchronised and
non-compliant ANPR system.

5. Unclear and non-compliant signage, forming no contract with drivers.

6. Lack of Planning Permission to erect signage.


Appendices

Appendix 1 Excel Letter of appeal rejection
Appendix 2 BPA CoP Appendix B
Appendix 3 Images of driver’s view to entrance of car park
Appendix 4 Images of the area the driver parked (no signage)
Appendix 5 Images of Entry Sign and a sign showing ‘Terms and Conditions’
Appendix 6 Email trail for Planning Enquiry



My detailed grounds to these points are below:

1. No breach of contract and no genuine pre-estimate of loss

Excel Parking state in their letter of rejection that they:-

“Confirm that the charges for this notice are set in place by the landowner whom Excel Parking Services Ltd manages the car park on behalf of…..”

And;

“Consider the PCN as a reasonable charge for liquidated damages in respect of a breach of the parking contract and contend that it is not a ‘penalty’ for a number of reasons. We have calculated this sum as a genuine pre-estimate of our losses as we incur significant costs in managing the parking location to ensure compliance to the stated Terms and Conditions and to follow up on any breaches of these identified. A full breakdown of costs will be provided at the request of a judge ……”

And;

“….by implications a motorist enters into a contract with Excel Parking Services Ltd by proceeding to park.”

And;

“As there was a contract between yourself and Excel Parking Services Ltd, there was no civil trespass.”



The signage within the car park clearly states “ENTRY TO OR USE OF THIS CAR PARK IS SUBJECT TO THE CURRENT TERMS AND CONDITIONS OF EXCEL PARKING SERVICES LTD. MOTORISTS UTILISING THIS CAR PARK HEREBY ACCEPT IN FULL THE TERMS AND CONDITIONS”

This statement above is in capital letters on the signage.

Please note the words “ENTRY TO” above. This implies to me the driver was deemed to be fully aware of the commitment as the vehicle entered the car park and that the act of parking is irrelevant. Clearly, this is likened to placing a small signpost in the middle of a field that states you will be ‘fined’ for walking on the grass’.

In section 5, I refer to the fact the entry sign could not be read by a driver looking straight ahead when entering the car park. Therefore, by not providing on site the full (and current) terms and conditions, which could have changed and only be displayed at Head Office, fully readable by a moving driver, there cannot possibly have been a contract formed between the driver and Excel Parking Services.


All contracts must have an offer, acceptance and consideration. There was no opportunity for this.See section 5 of this appeal for details of the signage.


If the parking charge is for liquidated damages, then the entirety of the
parking charge must be a genuine pre-estimate of loss in order to be
enforceable under contract law. The estimate must be based upon loss flowing from a breach of the parking terms. Therefore, any loss would be as a result of not receiving the ‘parking fee’, which would have amounted to £2.40 for a 2 hour stay on a Sunday, in an apparently empty car park.

As the car park was apparently empty (apart from one other car at the time), then there could have been no realistic loss to Excel or the Landowner (apart from the £2.40 parking fee).

It would be interesting to know how many drivers have been issued with PCN’s originating from breaches on a Sunday.

Excel has not supplied me with the requested breakdown of the ‘Parking
Charge’. As per their statement above, I am of the opinion they will only
submit this to a judge, so may not provide it to POPLA either.
EXCEL cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘losses’ claimed. Not only are those costs tax deductible, but if no breaches were to occur in that car park, the cost of parking 'enforcement ' would still remain the same.

According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. Therefore, there is minimal loss to EXCEL or the landowner. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''

I therefore require Excel to submit a full breakdown of their Genuine

Pre-estimate of Loss to how this loss is calculated in this particular car
park and for this particular ‘contravention’.

2. Contract with landowner - no locus standi

EXCEL does not own, nor do they have any interest or assignment of title of, the land in question (Land Registry title number WYK715090 – Yes, I have paid £6 for the search). As such, I do not believe that EXCEL has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract, even though they state they have the landowner’s agreement on charges. In my initial appeal, I have requested from Excel an unredacted copy of the contract between Excel and the Landowner. Excel replied as follows:-

“We act on behalf of the landowner. We cannot, at this time, provide a copy of our contract due to it being commercially sensitive. Our signs on site make it clear that we operate/manage the car park. If necessary, we can provide a copy of the contract between ourselves and the landowner, should a judge request one in court.”

Therefore, this implies only a judge can see this (not even POPLA?).

Clearly, as Excel ‘act on behalf of the landowner’, then Excel must show the landowner is also the creditor. The Landowner(s) is/are the person(s) named in the Land Registry Document for the plot of land ref: WYK715090. I hold a copy of this document, obtained by an online search request.

Further to this, I put it to Excel to show that they have full rights assigned to them by the landowner to:-

• Use the land as a private car park and be allowed to charge parking fees;
• To create contracts directly between Excel and the motorist;
• To take such actions as are necessary against motorists to recover unpaid monies;
• To retain any and all monies received in claims for Liquidated
Damages.


The BPA CoP clearly states, and this is mandatory, in Section 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 recover charges due from drivers charged for unauthorised parking.

Furthermore, the Landowner must have agreed with Excel the fees for parking and any monies to be recovered in the event of failure to meet the requirements of the alleged parking contract.

To meet my initial request, I still require sight of a full copy of the actual contemporaneous, 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 the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow EXCEL to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/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 could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

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

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited.


3. Notice to Keeper not properly given under POFA 2012 – no keeper
liability.

The Notice I have received, as the registered owner of the vehicle, makes it clear that EXCEL is relying on Schedule 4 of the Protection of Freedoms Act 2012. EXCEL has failed to comply in the wording of their Notice to Keeper since they have failed to identify the ‘Creditor’. This may, in law, be Excel Parking or landowner, or indeed some other party. Schedule 4 of the Act requires a Notice to Keeper to have the words to the effect that ‘The Creditor is.....”.

As Excel previously state they ‘act on behalf of the landowner’, then Excel must show the landowner is the creditor.

The wording of Paragraph 9(2)(h) of Schedule 4 of the Act does not just
indicate that the creditor must be named/assumed, but “identified”. The
owner of the vehicle is entitled to know the identity of the party with whom the driver has allegedly contracted. In failing to specifically identify the ‘Creditor’ in its Notice to Keeper, Excel Parking has failed to establish keeper liability. In this case, the NTK has not been correctly 'given' under POFA2012 and so it is a nullity. In a previous ruling, POPLA Assessor

Matthew Shaw stated that the validity of a Notice to Keeper is 'fundamental to establishing liability' for a parking charge, stating: 'where a Notice is to be relied upon to establish liability it must, as with any statutory provision, comply with the Act.'


4. Lack of readable photographic evidence and unreliable, unsynchronised, non-compliant ANPR system.

I call into question the reliability and compliance of the ANPR system because EXCEL is relying on two APNR pictures of a vehicle showing a car and number plate apparently of my car entering and leaving the site. The image shows some information relating to times etc. However, this information is unreadable from the PCN. I requested these photographic images from Excel, but although they replied in their appeal rejection letter to me saying they were attached, there were no attachments. I also requested proof of calibration of the APNR system etc. This was not provided.

I therefore require the Operator to:

1. Provide clear and legible photographic evidence showing dates, times
and other such information displayed on the photographic images printed on the PCN;

2. Present records which prove:

The Manufacturers' stated % reliability of the exact ANPR system used here;
The dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images.

The Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

I also suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and may not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. Hence without a synchronised time stamp there is no evidence that the image is ever time stamped accurately. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put Excel to strict proof to the contrary.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:

''21 Automatic number plate recognition (ANPR)

21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.

21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.

21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.

21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:

• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''


5. Unclear and non-compliant signage, forming no contract with drivers.

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

“We maintain our signs are clearly visible and meet the requirement set by the British Parking Association guidelines. As established members of the British Parking Association, we adhere to their Code of Practice on Private Land and Unregulated Car Parks”

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

The BPA CoP (Version 3, June 2013) clearly states that signage must be
compliant, to which Excel state they are. Whilst there is signage within certain areas of the car park, there were none in the area the driver parked the car.

In Appendix B of the BPA CoP, it states a standard form of entrance sign must be placed at the entrance to the parking area. See Appendix 2 of this appeal for a copy of the BPA CoP Appendix B. For reference, the following extract is from various parts of the BPA CoP Appendix B:-

“This blue rectangle with the ‘P’ symbol can be left out 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 have the ‘P’ symbol, you may move the AOS roundel to the bottom of the sign alongside the operator’s name.You must always mention that terms and conditions 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 there are terms and conditions, must be visible to and readable by a driver approaching the entrance to the car park when approaching on a road, looking straight ahead. The entrance sign did not conform to this by reason of:

1. A driver approaching on Garden Street from a southerly direction would only be able to see the entrance sign after they actually entered the car park and turned their head fully to the left whilst still driving forward – clearly by doing this the driver would be committing a contravention of the highway code and putting his/her self, their passengers and 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 without turning their head a full 90 degrees to the left as the car park was
entered.

The terms and conditions on the signage within the car park is blue printing on a yellow background. This is contrary to the BPA CoP, as a driver having visual difficulties may not be able to read this. A further non-compliance to the BPA CoP is:-

• No signs show Excel Adhere to the BPA CoP;

There was no signage in the area the driver parked the car, the nearest sign being obstructed by an Electricity Supplier’s transformer compound. As the driver left the car park via the footpath adjacent to where the car was parked no signage was visible. This also may not comply with the BPA CoP.

The signage within the car park states the following:

“Failure to comply with the following will result in a parking charge notice being issued and a charge of £100 being enforced, discounted to £60 if payment is received within 7 days of the notice issue date. If payment is not received within 14 days of the notice issue date a further £40 charge will be incurred….”

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

I also requested Excel to provide locations and facing directions of all signage. This was not complied with.

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 location and facing direction of the mandatory entrance sign(s), which the driver should clearly see upon approach to the car park.


6. Lack of Planning Permission to erect signage and CCTV Cameras

I understand that under Planning Regulations it is mandatory to apply for and
receive Planning Permission to erect signage above a certain size and CCTV Cameras.

After a recent email enquiry with the Planning Authority, I have been informed there are no records showing applications for Excel in relation to anything for the car park (see email trail in Appendix 6).

I have considered therefore that Excel does not have appropriate planning permission to erect signage at the car park. If this is so, then they would not have been able to indicate to any approaching driver that they were entering a private car park, even if the signage stated so (which it does not). In addition, if Excel does not have planning permission to install the CCTV (APNR) cameras, then they are probably acting illegally and would not be able to use the APNR data as evidence. I had required Excel to provide me with copies of their approved planning permissions, including any applied conditions. They have declined to do this.

I therefore require Excel to provide copies of all planning approvals, including any applied conditions, to conclusively prove the signage and CCTV installations comply with local authority rules.






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




Appendices:-

Appendix 1 Excel Letter of appeal rejection

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Appendix 2 BPA CoP Appendix B

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Appendix 3 Images of driver’s view to entrance of car park

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Appendix 4 Images of the area the driver parked (no signage)

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Appendix 5 Images of Entry Sign and a sign showing ‘Terms and Conditions’

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Appendix 6 Email trail for Planning Enquiry

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If you are still awake after that lot, then you are just like me.

I would be grateful if forum members would cast their eyes over the appeal and offer advice.

I must say again, I could not possibly have had the courage to even think of creating an appeal of this nature without the dedication of the forum members.

Cheers,
Kidstaxi