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Euro Car Parks overstay
PScott86
Posts: 3 Newbie
Morning everyone
First of all - thank you to this forum for all of the help I have received so far purely from reading the various sticky threads and posts people have made.
About three weeks ago I received a PCN from Euro Car Parks demanding payment of £70 reduced to £40 if I paid early. This was based on overstaying in a retail car park which had a time limit of 45 minutes (ANPR evidence[FONT="]).
I appealed to Euro Car Parks using the template provided on this site citing no GPEOL and no contract, amongst other things. As expected, I received my appeal rejection yesterday.
I've been looking at the POPLA appeal threads and drafted my appeal to POPLA based on what I think are the right criteria. Can someone check what I've put to see if I've covered all the salient points before I fill in the details online?
[/FONT] "I am the Registered Keeper of the vehicle related to the parking charge notice number xxxxx received.
I have researched the matter, taken legal advice and would like to point out the following as my appeal against said charge:
UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE
Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, understand and no notices at all are positioned near the entrance or exists to any of the shops. Indeed it is possible to park in front of the store doors, which is extremely close to the entrance to the car park and be roughly 20 feet from the nearest sign which is positioned high above the road.
I contend that the signs and any core parking terms the operator are relying upon were too small for any driver to see, read or understand.
I contend that the signs on this land (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 and Waltham Forest v Vine [CCRTF 98/1290/B2])
CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND/OR NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES
The operator does not appear to own this car park and is assumed to be merely an agent for the owner or legal occupier. In their Notice and in the rejection letters, The Operator has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.
I require The Operator to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.
Contracts are complicated things, so a witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original showing the points above is the only acceptable item as evidence that a contract exists and authorises The Operator the right, under contract to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.
I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.
I do not believe that The Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision 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 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 ruling of the Court was that "I would hold, therefore, 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, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. 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.
The Operator also make reference in their appeal refusal of 12/03/2014 to “seek to recover the monies owed to us” and makes no reference to the Landlord at all.
USE OF ANPR and DATA COLLATION
I further contend that The Operator has failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require them to provide documented compliance to this section of the Code in its entirety.
This evidence must show documentary proof of contemporaneous manual checks, maintenance, calibration and full compliance with section 21 of the Code, in its evidence.
I also challenge The Operator to show that DPA registration (data collecting CCTV) is also complaint with legal and BPA requirements and demand that they demonstrate adherence.
Euro Car Parks are obliged to make sure the ANPR equipment is in working order, as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice, version 3 of June 2013. I require Euro Car Parks to present records as to the dates and times of when the cameras were checked, calibrated and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times – it's vital that Euro Car Parks produce evidence in response to these points.
NO CONTRACT WITH THE DRIVER
There is no contract between PCC and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc. were not satisfied.
UNFAIR TERMS
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." Furthermore, Regulation 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" and 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."
UNREASONABLE
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”
NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
There was no parking charge levied, the car park is “free”. On the date of the claimed loss it was only at 15% capacity and there was no physical damage caused. There can have been no loss arising from this incident. Neither can (PPC) lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by PoPLA itself in adjudication.
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.
The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges of £3.00 for all day parking. This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would argue that if a charge can be discounted by 42.8% (£70 to £40) by early payment then it is unreasonable to begin with.
UNLAWFUL PENALTY CHARGE
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge 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), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .
The operator is either charging for losses or it is a penalty/fine.
The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CONTRACTUAL PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.
SUMMARY
On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.
Any thoughts you guys have are welcome. Thanks in advance.
First of all - thank you to this forum for all of the help I have received so far purely from reading the various sticky threads and posts people have made.
About three weeks ago I received a PCN from Euro Car Parks demanding payment of £70 reduced to £40 if I paid early. This was based on overstaying in a retail car park which had a time limit of 45 minutes (ANPR evidence[FONT="]).
I appealed to Euro Car Parks using the template provided on this site citing no GPEOL and no contract, amongst other things. As expected, I received my appeal rejection yesterday.
I've been looking at the POPLA appeal threads and drafted my appeal to POPLA based on what I think are the right criteria. Can someone check what I've put to see if I've covered all the salient points before I fill in the details online?
[/FONT] "I am the Registered Keeper of the vehicle related to the parking charge notice number xxxxx received.
I have researched the matter, taken legal advice and would like to point out the following as my appeal against said charge:
UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE
Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, understand and no notices at all are positioned near the entrance or exists to any of the shops. Indeed it is possible to park in front of the store doors, which is extremely close to the entrance to the car park and be roughly 20 feet from the nearest sign which is positioned high above the road.
I contend that the signs and any core parking terms the operator are relying upon were too small for any driver to see, read or understand.
I contend that the signs on this land (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 and Waltham Forest v Vine [CCRTF 98/1290/B2])
CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND/OR NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES
The operator does not appear to own this car park and is assumed to be merely an agent for the owner or legal occupier. In their Notice and in the rejection letters, The Operator has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.
I require The Operator to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.
Contracts are complicated things, so a witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original showing the points above is the only acceptable item as evidence that a contract exists and authorises The Operator the right, under contract to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.
I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.
I do not believe that The Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision 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 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 ruling of the Court was that "I would hold, therefore, 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, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. 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.
The Operator also make reference in their appeal refusal of 12/03/2014 to “seek to recover the monies owed to us” and makes no reference to the Landlord at all.
USE OF ANPR and DATA COLLATION
I further contend that The Operator has failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require them to provide documented compliance to this section of the Code in its entirety.
This evidence must show documentary proof of contemporaneous manual checks, maintenance, calibration and full compliance with section 21 of the Code, in its evidence.
I also challenge The Operator to show that DPA registration (data collecting CCTV) is also complaint with legal and BPA requirements and demand that they demonstrate adherence.
Euro Car Parks are obliged to make sure the ANPR equipment is in working order, as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice, version 3 of June 2013. I require Euro Car Parks to present records as to the dates and times of when the cameras were checked, calibrated and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times – it's vital that Euro Car Parks produce evidence in response to these points.
NO CONTRACT WITH THE DRIVER
There is no contract between PCC and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc. were not satisfied.
UNFAIR TERMS
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." Furthermore, Regulation 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" and 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."
UNREASONABLE
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”
NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
There was no parking charge levied, the car park is “free”. On the date of the claimed loss it was only at 15% capacity and there was no physical damage caused. There can have been no loss arising from this incident. Neither can (PPC) lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by PoPLA itself in adjudication.
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.
The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges of £3.00 for all day parking. This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would argue that if a charge can be discounted by 42.8% (£70 to £40) by early payment then it is unreasonable to begin with.
UNLAWFUL PENALTY CHARGE
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge 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), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .
The operator is either charging for losses or it is a penalty/fine.
The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CONTRACTUAL PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.
SUMMARY
On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.
Any thoughts you guys have are welcome. Thanks in advance.
0
Comments
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Lovely jubley. Looks good to me. Wait for a few more people to view it. Just do you know, if you are going to submit it online then POPLA does have a character limit. You can attach a full copy as evidence and then in the box just out something like 'see attached appeal'. Or send it by snail mail (with free proof of postage).
Another nice example of someone taking time to read the threads and the stickies and making a damn good good of it.0 -
Just spotted one mistake. Under the no breach of contract heading you have "(PPC)", I assume this is meant to be replaced with the name of the company?0
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Nice to see you found the NEWBIES thread for both the initial appeal and POPLA stage helpful.
It's looking good - only suggestions I would make are more about structure than content ( which looks fine).
So
1/ consider shuffling the sequence of your paragraphs to be in the order of importance for POPLA wins
2/ number them and provide a list of the headings at the start of your letter (helps the assessor know exactly what points will be covered right at the start)
for example:
1) NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
2) UNLAWFUL PENALTY CHARGE
3) CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND/OR NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES
4) UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE
5) NO CONTRACT WITH THE DRIVER
6) USE OF ANPR and DATA COLLATION
7) UNFAIR AND UNREASONABLE TERMS (consider combining these two - might also want to consider combining 4 and 50 -
Thank you guys for your responses. I could probably have figured out how to fight this on my own in the end but it would have taken a lot of work on my part - the great thing about this forum is that all I have to do is read a few threads, find a template and tailor it to my situation. I bet PPCs hate this website. Good!
I sent my POPLA appeal off just now. Does anyone know roughly how long it takes them to make a judgment?0 -
I think I'm correct in saying
You will get an acknowledgement from POPLA and a date your appeal will be considered.
Your appeal documents will be forwarded by POPLA to the PPC so that they can respond.
You will get an evidence pack from the PPC forwarded to you which they also send to POPLA - if they submit one and a lot are not bothering (when they see the strength of the appeal from forum supported appellants) so appeals are being won by what amounts to a no-show.
When you get it check it over in case there is anything in it you want to bring to the attention of the POPLA assessor - you can submit any extra evidence/supporting info up to the date of the review (make sure you always include the POPLA code on any supplementary info)
As the date approaches email POPLA if you haven't received any PPC evidence pack.
But hang fire for more experienced members to confirm the above0 -
So 10 days after lodging my POPLA appeal I got an email saying that Euro Car Parks had cancelled the PCN and therefore I won. Massive thank you to everyone on this board who helped out, whether with comments or with the sticky threads that contained the templates I used to win.0
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Excellent. A shining example of what can be done if people actually read the Sitcky Threads.0
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