Excel Parking Fine - Bury New Road

duffy182

Hello everyone,

I was just wondering if someone could give me some advice about my parking fine situation at the moment. I have read so many stickys and forums regarding excel parking fines that I think I have confused myself entirely. I have even considered just paying the £60 because I am unsure I will appeal correctly but it would really annoy me to do so! It looks like these forums have really helped people so I was just wondering if anyone could help me as soon as possible, PLEASE! I am a fairly new driver and need all the help I can get!

So this is what has happened so far and where I am up to in my appeal process....

On 12 March 2014 I met a friend (who was also driving) for dinner at Bury New Road Car Park in Prestwich, Manchester. We went to a restaurant on the land called Croma (which I can verify with a bank statement for the meal transaction) and we were there for about 1 hour 15 minutes. We both parked on the exact same car park for the exact same time but it was only my vehicle that had a Penalty Charge Notice from Excel. It was for £60, rising to £100 if I did not pay within 14 days. I decided to appeal to Excel and did a lot of research into how to do this. I ended up sending this appeal to them....


'Dear Sir or Madam,

Ticket number: XXXXXXXXXX

Vehicle registration number: XXXX XXX

You issued me with a parking ticketon 12/03/2014 at Bury New Road Car Park in Prestwich and I believe the ticketwas unfairly issued and I will not be paying your demand for payment for thefollowing reasons:

[*]The fee is disproportionate

According tothe Unfair Terms in Consumer Contract Regulations, parking charges on privateland must not exceed the cost to the landowner during the period the motoristis parked there. In my case, the £100.00fine you areasking for far exceeds the cost to the landowner of £1.00 for up to 14 hoursafter 6pm, until 8am the next morning. This parking fine correlates to avehicle being parked on this car park for 1,400 hours, whereas the vehicle thisappeal relates to was parked on this land for approximately 1 hour and 30minutes. Furthermore, the first hour to park on the land is free, as stated onthe car park signs, therefore this fine of 100 times the car park ticket priceis for 30 minutes of parking.

I understand that Excel ParkingLimited manage the car park on behalf of The Bury New Road Car Park and act asan agent for the landowner, who by his right of land ownership can only imposea payment in respect of the actual losses incurred by that party. Since the carpark is a pay and display facility, even though I am going to dispute how clearthe signs are stating the operational hours later in this appeal, the lossincurred by the landowner is a matter of the time spent in the car park withoutmaking the relevant payment. This is a quantifiable loss as can be seen on thesign which displays the actual normal parking fee. In this case the amount ofthe loss to the landowner is £1.00; 100 times less than the fine I am beingcharged. To continue pursuing this fine, I would like a fully detailedexplanation from yourselves and a financial summary of how the loss of incometo the landowner totals £99.00 more than the £1.00 charged for 30 minutes ofparking.

The Code of Practice statesthat:

‘If your parking charge isbased upon a contractually agreed sum, that charge cannot be punitive orunreasonable.’

As the cost of parking at BuryNew Road is free for up to 1 hour and then £1.00 after 6pm, how can a charge of100 times that be considered as ‘non punitive or reasonable?’

[*]Discriminatory Fine and Signage

Thesigns in Bury New Road Car Park, one of which I have attached a photograph of,are not at all clear. With referral to The BPA Code of Practice, it states this ofsignage:

‘The sign must be readable from far enough away sothat drivers can take in all the essential text without needing to look morethan 10 degrees away from the road ahead.’

I argue this is not the case at Bury New Road as itwas only when I received the ‘charge notice’ did I have to walk right up to thecar park’s signs to see where it was attempting to be justified. The smallerfont was only just readable when standing directly in front of the sign and itwas also very brightly coloured, busy and confusing. I found the signs to bevery unclear. The contrasting font for providing different information was alsoconfusing as the largest section, arguably most visible section, states ‘UP TO1 HRS: FREE’. This was the first time I have parked in this location and feltlike the signs did not give enough notice to drivers, in font size andcolouring. The colours used on the signs are blue and yellow, with the use ofsuch colours actually being highlighted in the BCP Code of Practice:

‘Combinationssuch as blue on yellow are not easy to read and may cause problems for drivers.’

As a final point to my appeal, the vehicle wasactually parked on this land at the same time as a friend’s vehicle, who I wasmeeting. We both arrived at the car park at or around 6.20pm on 12/03/2014 andwe both left at or around 7.45pm. Initially when we arrived, as your cameraevidence will show, my friend attempted to buy both of the vehicles a ticket;even though we were unsure what the protocol was due to the signs not beingclear. We even asked a fellow car park user who admitted they were not sure, asit was confusing, and had only been there 5 minutes and was now leaving,without purchasing a parking ticket. My companion tried to buy a £1.00 ticket,which the machine then gave back without a ticket. She tried several times andthen presumed that as the machine would not take the money, the car park didnot require a bought parking ticket. Again, as the signs were so unclear, wedecided this must be correct. Therefore both vehicles did not have parkingtickets, were parked in exactly the same Bury New Road Car Park and were therefor exactly the same amount of time, if not my friend’s vehicle being thereslightly longer as it arrived before. However, when we returned to our vehiclesit was only my vehicle that had received a ‘Penalty Charge Notice’ at 6.56pm. Icannot comprehend how the exact same circumstances of each vehicle could resultin one being charged a £100 penalty charge and the other not receiving a chargeat all. As this is meant to be a parking contract, between driver and landowner, then surely it should be one that is applied to all vehicles and driversaccordingly, with no mitigating circumstances. Although I am not suggesting twowrongs make a right, what I am trying to establish is why the Penalty Chargeinvoice was applied, in this case, to one vehicle and not to others that are inexactly the same circumstance. Your surveillance will show this turn of events.I even called Excel Parking Limited this morning, 13/03/2014, at approximately8.37am (0114 242 1111) and spoke to a customer advisor called Jamie. Even hestated that this fine seemed unfair once I had explained this situation andthat he himself would appeal in my case. Jamie confirmed that the charge wouldbe frozen on receipt of my appeal until any decision was made.

Thankyou for reading this appeal. If you chooseto pursue me please be aware that I will not enter into any correspondence andthis will be the only letter you will receive from me until you answer thespecific points raised in my letter.

Please confirm receipt of this emailwith a confirmation reply as soon as possible.

Yours faithfully
xxxxxxxxxxxxxxxxxx'

So that is my appeal letter, I sent it on 13/03/2014. I got a reply dated 16/04/2014 stating that the reasons I stated do not constitute grounds for the cancellation of the Notice. The Bury New Road Car Park offers a free one hour of parking, providing a valid Pay and Display ticket is displayed on the vehicle. The signs clearly advise motorists must display a valid pay and display ticket. The Notice was issued correctly and the charge will stand. It also states that 'by your own admission, your vehicle was not displaying a ticket' due to me stating that my friend tried several times to purchase one but it failed to give us one and so we presumed it wasn't needed. They have stated it is not unreasonable for motorists to check the signs (which I suppose is true).
Anyway, I can either raise to POPLA or pay £60... in my case what do you think I should do? I have until 29/04/14 to either pay £60 or it be increased to £100 (which it will be anyway if I appeal to POPLA).
PLEASE HELP!
Thank you.

Redx

I assume you have read the NEWBIES sticky thread at the top of this forum

first of all you have not received a fine , nor have you received a penalty charge notice

you have received a parking charge notice , an invoice

personally I would appeal to popla using the usual appeal points of not a gpeol , no contract and bad signage (all detailed in the newbies thread)

beat them at popla, nothing to pay - job done

if they havent given you the 10 digit popla code, complain and get it, meantime look for similar excel appeals like the peel centre stockport , and adapt it to suit (search words are peel or stockport)

post it from notepad onto here for checing before submission to popla (minus any personal details)

duffy182

Thank Redx, I have seen you on loads of these threads so thanks for helping! I have used a template from coupon-mad for my appeal but I am worried that POPLA may just dismiss it for using the same letter as others?! Like plagerism type thing? Or does that not matter?

This is my draft POPLA appeal:


Dear POPLA adjudicator,

I am writing to appeal against a parking charge levied by Excel ParkingServices Ltd on XX/XX/XXXX in Bury New Road Car Park, Prestwich. I am theregistered keeper of the vehicle concerned.

The grounds for my appeal are as follows :

1) No genuine pre-estimate of loss

The charge of £100 is punitive and unreasonable, contravening the BritishParking Association’s Code of Practice section 19. Excel Parking Services Ltd(Excel) must therefore be required to explain their 'charge' by providing POPLAwith a detailed financial appraisal which evidences the genuine pre-estimatedamount of loss in this particular car park for this alleged contravention.However, with or without any 'breach', the cost of parking enforcement wouldstill have been the same and there was no loss or damage caused so Excel haveno cause of action to pursue this charge. I specified in my original appealthat I would like to see a breakdown of the costs incurred by Excel as a resultof the alleged breach. Excel have failed to provide this information, statingthat the charge is in line with BPA guidelines and therefore “deemedreasonable”. This reply completely fails to demonstrate that the whole chargeis a genuine pre-estimate of loss. The fact that the recommended maximum levelin section 19.5 (“we would not expect this amount to be more than £100”) hasnot been exceeded merely means that the operator does not have to justify theamount in advance. In no way does it absolve the operator of theirresponsibility to base the figure on a genuine pre-estimate of loss, or to complywith section 19.6 which states that the charge can “cannot be punitive orunreasonable”.

Excel cannot include their operational tax-deductible business running costs -for example, costs of signage, staffing and dealing later with the appeals, orhefty write-off costs. This would not represent a loss resulting from a breachof the alleged parking contract and in any case I believe Excel are likely tobe paid by their client - so any such payment income must be balanced withinthe breakdown Excel supply and must be shown in the contract, which leads me tomy next appeal point.

2) Legal capacity to issue parking charges

Excel have no proprietary interest in the land concerned and have not respondedto a request for a copy of the contract with the landowner in which authorityto pursue outstanding parking charges is granted, as required by the BPA Codeof Practice, Section 7. In particular, the issue of the requirement set out insection 7.2 paragraph (f) : “whether or not the landowner authorises you to takelegal action to recover charges from drives charged for unauthorised parking”has not been addressed. In the absence of this evidence, I believe that Exceldo not have the legal capacity to enforce such a charge.

I require the unredacted landowner contract including any payments made betweenthe parties, names & dates & details of all terms included. I suspectExcel are merely an employed site agent and this is nothing more than acommercial agreement between the two parties. There is nothing that couldenable Excel to impact upon visiting drivers in their own right, for their ownprofit. For the avoidance of doubt, I will not accept a mere “witnessstatement” instead of the relevant contract. There would be no proof that thealleged signatory can act on behalf of the landowner or has ever seen therelevant contract. Also a letter or statement would fail to show any paymentsmade between the parties, and would omit dates & details of all terms inthe actual contract - and so would fail to rebut my appeal point about theOperator's lack of standing & assignment of any rights.
.

3) Unfair terms

The terms that the Operator is alleging create a contract, were notreasonable, not individually negotiated and caused a significant imbalance - tomy potential detriment. Therefore, this charge is an unreasonable indemnityclause under section 4(1) of the Unfair Contract Terms Act 1977, whichsays: ‘A person cannot by reference to any contract term be made to indemnifyanother person (whether a party to the contract or not) in respect of liabilitythat may be incurred by the other for negligence or breach of contract, exceptin so far as the contract term satisfies the requirement of reasonableness.’

Further, the charge contravenes The Unfair Terms in ConsumerContract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may beregarded as unfair”
1(e)“Terms which have the object or effect of requiring any consumer whofails to fulfil his obligation to pay a disproportionately high sum incompensation.”
5(1) ''A contractual term which hasnot been individually negotiated shall be regarded as unfair if, contrary tothe requirement of good faith, it causes a significant imbalance in theparties' rights and obligations arising under the contract, to the detriment ofthe consumer. (2) A term shall always be regarded as not having beenindividually negotiated where it has been drafted in advance and the consumerhas therefore not been able to influence the substance of the term.''

From the Office of Fair Trading’s 'Guidance for the Unfair Terms in ConsumerContract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1“It is unfair to impose disproportionate sanctions for a breach ofcontract. A requirement to pay more in compensation for a breach than areasonable pre-estimate of the loss caused to the supplier is one kind ofexcessive penalty. Such a requirement will, in any case, normally be void tothe extent that it amounts to a penalty under English common law.”
Group 18(a): Allowing the supplier to impose unfair financialburdens
'18.1.3 These objections are less likely to arise if a term is specificand transparent as to what must be paid and in what circumstances. However, asalready noted, transparency is not necessarily enough on its own to make a termfair. Fairness requires that the substance of contract terms, not just theirform and the way they are used, shows due regard for the legitimate interestsof consumers. Therefore a term may be clear as to what the consumer has to pay,but yet be unfair if it amounts to a 'disguised penalty', that is, a termcalculated to make consumers pay excessively for doing something that wouldnormally be a breach of contract.
19.14 The concern of the Regulations is with the 'object or effect' ofterms, not their form. A term that has the mechanism of a price term...will notbe treated as exempt if it is clearly calculated to produce the same effect asan unfair exclusion clause, penalty, variation clause or other objectionableterm.'

I contend the above describes the charge exactly as an 'unfair financialburden'. The charge is designed ostensibly to be a deterrent, but is in fact adisguised penalty, issued by a third party agent which is not the landowner andhas no assignment of title. Such a charge would normally be restricted to thelandowner themselves claiming for any damages or loss - which was nothingas the driver was in Croma Restaurant on the site and if the driver had onlybeen informed of that by clearer and transparent signage in the various areasof this car park. The charge of £100 imposed by Excel constitutes an unfair term asit is disproportionate with respect to the alleged infringement.

Yours,


The registered keeper's name

It is essentially the same as the Peel Centre Excel Parking fine but for Bury New Road Car Park.
What do you think?
Thankyou!!!!

Redx

seems reasonable to me but I would wait and see what others think as it may need slight rewording

looks badly formatted so I suspect you have copied and pasted from word instead of notepad (I always advocate using notepad to get it onto here)

you should also get out of the bad mindset that these are fines or penalty charges , they are not , they are invoices

only a judge or court can fine you , only the council can issue penalty charges , this is neither

doesnt matter if you get one ticket or a hundred tickets, I am sure parking prankster has far more than you do and appeals them all as separate entities

forget you had one before , its not relevant , but use the experience to help yourself with this one

good luck

Coupon-mad

You seem to have missed out 'unclear signage' which you will see from the various examples, is ALWAYS in a POPLA appeal to make them show pics/maps which they could get wrong.

duffy182

So definitely don't pay it and appeal to POPLA even though it will go up to £100 if they reject it to?

duffy182

just saw your post coupon mad? should i put in this do you think? ...

The signs in Bury New Road Car Park are not at all clear. With referral to The BPA Code of Practice, it states this of signage:

‘The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.’

I argue this is not the case at Bury New Road as it was only when I received the ‘charge notice’ did I have to walk right up to the car park’s signs to see where it was attempting to be justified. The smaller font was only just readable when standing directly in front of the sign and it was also very brightly coloured, busy and confusing. I found the signs to be very unclear. The contrasting font for providing different information was also confusing as the largest section, arguably most visible section, states ‘UP TO 1 HRS: FREE’. This was the first time I have parked in this location and felt like the signs did not give enough notice to drivers, in font size and colouring. The colours used on the signs are blue and yellow, with the use of such colours actually being highlighted in the BCP Code of Practice:

‘Combinations such as blue on yellow are not easy to read and may cause problems for drivers.’

The driver even asked a fellow car park user for advice but they admitted they were not sure, as the signage was confusing, and had only been there 5 minutes and was now leaving, without purchasing a parking ticket.

Let me know what you think

Coupon-mad

The code of practice doesn't say that '10 degrees away' it's an urban myth. OF COURSE GO TO POPLA! - YOU SEEM TO HAVE MISSED OUR 100% RECORD!!

duffy182

sorry! I did read that I am just rubbish at this kind of thing and panic!

This is my final POPLA appeal:

Dear POPLA adjudicator,

I am writing to appeal against a parking charge levied by Excel Parking Services Ltd on XX/XX/XXXX in Bury New Road Car Park, Prestwich. I am the registered keeper of the vehicle concerned.
The grounds for my appeal are as follows :

1) No genuine pre-estimate of loss
The charge of £100 is punitive and unreasonable, contravening the British Parking Association’s Code of Practice section 19. Excel Parking Services Ltd (Excel) must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so Excel have no cause of action to pursue this charge. I specified in my original appeal that I would like to see a breakdown of the costs incurred by Excel as a result of the alleged breach. Excel have failed to provide this information, stating that the charge is in line with BPA guidelines and therefore “deemed reasonable”. This reply completely fails to demonstrate that the whole charge is a genuine pre-estimate of loss. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge can “cannot be punitive or unreasonable”.
Excel cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe Excel are likely to be paid by their client - so any such payment income must be balanced within the breakdown Excel supply and must be shown in the contract, which leads me to my next appeal point.

2) Legal capacity to issue parking charges
Excel have no proprietary interest in the land concerned and have not responded to a request for a copy of the contract with the landowner in which authority to pursue outstanding parking charges is granted, as required by the BPA Code of Practice, Section 7. In particular, the issue of the requirement set out in section 7.2 paragraph (f) : “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed. In the absence of this evidence, I believe that Excel do not have the legal capacity to enforce such a charge.
I require the unredacted landowner contract including any payments made between the parties, names & dates & details of all terms included. I suspect Excel are merely an employed site agent and this is nothing more than a commercial agreement between the two parties. There is nothing that could enable Excel to impact upon visiting drivers in their own right, for their own profit. For the avoidance of doubt, I will not accept a mere “witness statement” instead of the relevant contract. There would be no proof that the alleged signatory can act on behalf of the landowner or has ever seen the relevant contract. Also a letter or statement would fail to show any payments made between the parties, and would omit dates & details of all terms in the actual contract - and so would fail to rebut my appeal point about the Operator's lack of standing & assignment of any rights.
.
3) Unfair terms
The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘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.’
Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair”
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.”
5(1) ''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. (2) 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.''
From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1“It is unfair to impose disproportionate sanctions for a breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'

4) Unclear Signage

The signs in Bury New Road Car Park are not at all clear. With referral to The BPA Code of Practice, it states this of signage:
‘The sign must be readable from far enough away so that drivers can take in all the essential text.’
I argue this is not the case at Bury New Road as it was only when I received the ‘charge notice’ did the driver have to walk right up to the car park’s signs to see where it was attempting to be justified. The smaller font was only just readable when standing directly in front of the sign and it was also very brightly coloured, busy and confusing. The driver found the signs to be very unclear. The contrasting font for providing different information was also confusing as the largest section, arguably most visible section, states ‘UP TO 1 HRS: FREE’. This was the first time the driver has parked in this location and felt like the signs did not give enough notice to drivers, in font size and colouring. The colours used on the signs are blue and yellow, with the use of such colours actually being highlighted in the BCP Code of Practice:
‘Combinations such as blue on yellow are not easy to read and may cause problems for drivers.’
The driver even asked a fellow car park user for advice but they admitted they were not sure, as the signage was confusing, and had only been there 5 minutes and was now leaving, without purchasing a parking ticket.
To conclude, I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss - which was nothing as the driver was in Croma Restaurant on the site and if the driver had only been informed of that by clearer and transparent signage in the various areas of this car park. The charge of £100 imposed by Excel constitutes an unfair term as it is disproportionate with respect to the alleged infringement.
Yours,

The registered keeper's name

Let me know guys and you help really is appreciated!

duffy182

changed the I to THE DRIVER in this bit:

The signs in Bury New Road Car Park are not at all clear. With referral to The BPA Code of Practice, it states this of signage:
‘The sign must be readable from far enough away so that drivers can take in all the essential text.’
I argue this is not the case at Bury New Road as it was only when the driver received the ‘charge notice’ did they have to walk right up to the car park’s signs to see where it was attempting to be justified. The smaller font was only just readable when standing directly in front of the sign and it was also very brightly coloured, busy and confusing. The driver found the signs to be very unclear. The contrasting font for providing different information was also confusing as the largest section, arguably most visible section, states ‘UP TO 1 HRS: FREE’. This was the first time the driver has parked in this location and felt like the signs did not give enough notice to drivers, in font size and colouring. The colours used on the signs are blue and yellow, with the use of such colours actually being highlighted in the BCP Code of Practice:
‘Combinations such as blue on yellow are not easy to read and may cause problems for drivers.’
The driver even asked a fellow car park user for advice but they admitted they were not sure, as the signage was confusing, and had only been there 5 minutes and was now leaving, without purchasing a parking ticket.

Coupon-mad

That's better - I would move the signage point up to point #3 though, because the conclusion flows more from the Unfair terms section than from the signage point.