TPS ltd - obstructing a pedestrian walkthrough

skeep01

Hi Guys,

I have just spent an nearly an hour reading the newbies thread and wondered if anyone could offer any advice on my situation.

I am a student nurse and parked in the staff parking at my local hospital for which I have a permit. This is a gravel car park with fences running parallel and the fences have white markings on them indicating the bays. The space I parked in had a person sized gap in the fence but was still marked out in white paint as the width of a car. TPS issued me a windscreen 'parking charge notice' claiming that I had not parked in a marked bay and was actually in a pedestrian walkthrough, thereby breaching the terms and conditions.

I was so angry at receiving this, especially as there is no path or deviance in the gravel in any way to suggest that I was in a purely pedestrian area, that I immediately went home and e-mailed my appeal to TPS. After reading your forum I am now regretting my haste in not waiting for the notice to keeper letter as my appeal has been rejected as follows:

"The Terms and Conditions of parking at this location are clearly displayed at the entrance and throughout the car park. It is the vehicle drivers responsibility to ensure that when parking on private property they do so in accordance with the Terms and Conditions in force at the particular location. The vehicle in question was observed by our patrol officer as not being parked wholly within a marked bay, which was in contravention of the car parks Terms and Conditions of use.


Please find enclosed a copy of our photographic evidence, which shows that the vehicle was parked in a pedestrian walk through. This is indicated as there is a gap in the fence, where the bays are marked which means that this is a walk through"

Would you suggest that I still use the genuine pre-existing loss argument? Is that even valid in this case? Any help would be MASSIVELY appreciated!

nigelbb

Have you been provided with a code to appeal to POPLA? TPS are obliged to do so if they reject your appeal.

The appeal to POPLA will win as any liquidated damages for breach of contract must be a genuine pre-estimate of loss flowing from that breach. Clearly in your case TPS have suffered no loss. You will win on other points (inadequate signage etc) but the fact that the charge is not a GPEOL is a sure fire winner when presented correctly.

ColliesCarer

skeep01 wrote: »

......."The Terms and Conditions of parking at this location are clearly displayed at the entrance and throughout the car park. It is the vehicle drivers responsibility to ensure that when parking on private property they do so in accordance with the Terms and Conditions in force at the particular location. The vehicle in question was observed by our patrol officer as not being parked wholly within a marked bay, which was in contravention of the car parks Terms and Conditions of use.


Would you suggest that I still use the genuine pre-existing loss argument? Is that even valid in this case?

I agree with Nigelbb - the No GPEOL challenge is valid and should definitely be used.

You will be able to cover that the vehicle was not improperly parked in a point on "unclear and inadequate signage/bay markings - no contract with driver"

Regarding their comments on T&C's - it is not up to you to have to guess whether a space is or isn't a bay - it is up to them to make the bay markings and areas where no parking is allowed clear and unambiguous, which could easily be done by using things such as a sign saying "Walkway area - please keep clear", or perhaps by using hatching/walking stick figure painted on the ground to mark out the space intended as a walkway.

skeep01

Thank you both for replying. Yes, I have got a code from them so I am starting to draft a POPLA appeal now.

Just a quick question if you know the answer - as I acknowledged, by appealing, the windscreen notice straight away, does that mean they won't send me a notice to keeper? Does this matter at all?

fisherjim

skeep01 wrote: »

Thank you both for replying. Yes, I have got a code from them so I am starting to draft a POPLA appeal now.

Just a quick question if you know the answer - as I acknowledged, by appealing, the windscreen notice straight away, does that mean they won't send me a notice to keeper? Does this matter at all?

Think about it, you have replied following the windscreen notice so they have hooked the driver, they don't want the keeper now!

ColliesCarer

skeep01 wrote: »

Just a quick question if you know the answer - as I acknowledged, by appealing, the windscreen notice straight away, does that mean they won't send me a notice to keeper? Does this matter at all?

As Fisherjim says now that they have the driver they won't need the keeper.

As for does it matter - there could have been some extra appeal points available to the keeper but the main winning points - No Gpeol, no authority and non-compliant signage/no contract with driver are all still open to you and the fact you appealed early won't affect your chance of winning on those grounds as driver

stluke023

This is about saving your time and energy
Do a simple appeal do not spend hours and also nform them if they do not accept CONTRACT ,SIGNAGE, and GPEOL as reasons then issue a popla code where then we can give yiou the standard template to appeal to POPLA to a guaranteed win and costs them £27 in the process

stluke023

Remember this is a private car park and their rules, it would not matter if you were in a disabled bay
You will be arguing defending on the fact they have no right to bring the claim firstly

nigelbb

fisherjim wrote: »

Think about it, you have replied following the windscreen notice so they have hooked the driver, they don't want the keeper now!

Now that the driver is identified they cannot pursue the keeper.

skeep01

I've finally found some time to draft a POPLA appeal and would really appreciate any comments/thoughts or amendments. I have stuck with the points from the newbies thread and resisted having a rant about the fact that there were no signs or markings to indicate that this was not a parking space!:




I wish to appeal against the PCN notice on the following grounds:


CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES

The operator does not appear to own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection e-mail, 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 items as evidence that a contract exists and authorises The Operator the right, under contract to contact 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 CHARGE IS A PENALTY AND NOT A GENUINE PRE-ESTIMATE OF LOSS



The BPA Code of Practice states:
19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.
The £60 charge asked for, far exceeds the cost to the landowner who would have received £0.00 from any vehicles parked as the car park is free to use for permit holders. In the appeal TPS Ltd did not address this issue, and has not stated why they feel a £60 charge is an appropriate pre-estimate of loss.
For this charge to be justified a full breakdown of the costs TPS Ltd has suffered as a result of the car being parked within this bay is required and should add up to £60. Normal expenditure the company incurs to carry on their business (e.g. provision of parking, parking enforcement or signage erection) should not be included in the breakdown, as these operational costs would have been suffered irrespective of where the car was parked.


THE OPERATOR IS IN BREACH OF THE BPA CODE OF PRACTICE AS IT DOES NOT HAVE ANY SIGNAGE AT THE CAR PARK ENTRANCE.

The BPS Code of Practice states:

18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about
the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car
park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this.

No signs were provided at the entrance to the car park to allow the driver to enter into the contract that The Operator is alleging exists; this is a clear breach of the BPA code of practice.

Coupon-mad

A few suggestions:


- 'unclear signage' is always a good point but NOT just saying it's a BPA CoP breach. You might be surprised to learn that a BPA CoP breach (even a clear one) does not win a POPLA appeal. However 'unclear signage' when well argued, CAN win, if you show evidence and argue that no contract was formed with the driver as a result.

- Get rid of these sentences from the 'no GPEOL' paragraph as you don't want to tell them what to put, nor suggest that a good reply with a breakdown would 'justify' it!!

...For this charge to be justified a full breakdown of the costs TPS Ltd has suffered as a result of the car being parked within this bay is required and should add up to £60. Normal expenditure the company incurs to carry on their business (e.g. provision of parking, parking enforcement or signage erection) should not be included in the breakdown, as these operational costs would have been suffered irrespective of where the car was parked.

- replace it with a stronger no GPEOL paragraph like here:

https://forums.moneysavingexpert.com/discussion/comment/65370663#Comment_65370663

- Get rid of this (old template, forget citing VCS V HMRC as it doesn't help the point being made).

...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.