PCN at MCDONALDS

amronandmonty

I have had my appeal against overstaying the 90 minute restriction at my local McDonalds rejected by Civil Enforcement Ltd. I have my POPLA code and am in the process of writing out my appeal with the help of advice from this and other sites.

I returned to the car park to look at he signage and take photos.

There were several warning signs up but they warned of different penalties, some saying £100 reduced to £60 for early payment and the others saying £150 reduced to £75.

The signs are quite blunt in how they are set out-they state

90 MINUTES MAXIMUM PARKING

If you breach this rule you will be charged £100 (reduced to £60 if paid within 14 days)

The rest of the sign goes on about manual patrols, using ANPR cameras and the DVLA being contacted to obtain owner details, contact address and phone number of the operator.

The operator Civil Enforcement Ltd state in their rejection letter that the legal basis of the ticket being issued is contract law.

The points in my appeal already contain references to poor signage, requesting to see the contract between the operator and landowner, the punitive level of the penalty, unfair contracts, the case law on VAT and a request re the accuracy of the ANPR equipment.

My question is this typical wording on a sign and does the fact that there are signs requesting different amounts (ie £100 and £150) provide me with an additional appeal point.

Any advice appreciated.

Stroma

Look in the sticky thread by coupon mad for successful popla appeals, I suggest you use them, and to place whatever wording you use up on here to ensure that you are covering winning points.

Coupon-mad

''the punitive level of the penalty'', well yes but - you need the magic words:

GPEOL

Please read How to win at POPLA in the link in the NEWBIES thread. Loads of ANPR camera overstay POPLA examples there (e.g.any ParkingEye example, any CEL example, any Highview, G24 example).

HO87

Coupon-mad wrote: »

''the punitive level of the penalty'', well yes but - you need the magic words:

GPEOL

Please read How to win at POPLA in the link in the NEWBIES thread. Loads of ANPR camera overstay POPLA examples there (e.g.any ParkingEye example, any CEL example, any Highview, G24 example).

Or perhaps the magic letters?

GPEOL = Genuine Pre-estimate Of Loss.

ColliesCarer

Take a look at this thread by OP meater who is also challenging a CEL ticket and has just received CEL's evidence pack in response to the POPLA appeal. Some very useful information on a what to expect and some excellent pointers from 4consumerrights and others on how the evidence should be challenged.

https://forums.moneysavingexpert.com/discussion/4934878

amronandmonty

Stroma wrote: »

Look in the sticky thread by coupon mad for successful popla appeals, I suggest you use them, and to place whatever wording you use up on here to ensure that you are covering winning points.

My POPLA appeal is below . I have probably misunderstood what others have written, I'm a big lad I can take the criticism if its needed. Two questions, can you put too many appeal points and my rejection letter from CEL was dated 15/04/2014, does the appeal have to be in 28 days from that date


POPLA CODE: xxxxxx

Appeal against PCN xxxxx issued by Civil Enforcement Ltd to xxxxx



Dear Sir/Madam,


The above PCN was issued on xxxxx for parking between xxxxand xxxxx on 24/03/2014 at McDonalds, xxxxx. This is a free car park which The Operator states has a maximum 90 minute stay.

The driver entered the restaurant and purchased a meal. After finishing this the driver left the car in the car park went to the adjacent shopping centre, returned, re entered the restaurant for coffee then left the car park. These events exceeded the 90 minute limit.

As the registered keeper of the above vehicle I appeal against this PCN on the following grounds.

1. INADEQUATE SIGNAGE

On the material date, the vehicle was parked in a bay directly outside the entrance to the restaurant. There are no signs displayed in the bays adjacent to the entrance notifying customers of the 90 minute parking limit, the driver was therefore not aware of the time restriction. Bearing in the mind this will always be the most popular spot to park with its close proximity to the entrance. Enclosed are photographs showing this area it can clearly be seen there are no signs warning customers of the restriction. The vehicle was parked in the bay marked X shown in photograph number 1. This bay is set back from others in the section of bays shown in photograph marked 2.. The nearest sign is located on a lamppost marked Y in photograph 2 (photograph 2 was taken whilst standing in the bay marked X). It can easily be seen that any person using the bay marked X is parking behind the signage that covers this bay. On this basis I submit the signage is inadequate. Signage on entering the car park is present but positioned above the drivers’ height in such a way is not safely readable by a person driving a vehicle.

I have also enclosed photographs marked 3 and 4 of two different signs placed by The Operator at the car park. The signs give contradictory amounts that will be required to pay in the event of exceeding the 90 minute limit (one states £100 with reduction to £60 for payment within 14 days and the other states £150 with reduction to £75).

2. LACK OF CONTRACT
The Operator is a member of the British Parking Association, and the BPA Code of Practice. 7.1 of the BPA code of practice makes it a requirement that The Operator either own the land, or have the written authorisation of the land owner to enable them to operate on the land and to issue Parking Charge Notices.. I, as the appellant and registered keeper, put The Operator to strict proof that a valid contract exists that enables them to act in this manner on behalf of the landowner. It is not an onerous task to produce the contract as section 8.1 of the code means it has to be available at all times. In the event that witness statements are submitted instead of the landowner contract itself, I require that this should be disregarded as insufficient to prove full BPA compliance. The Data Protection Act cannot be used as an excuse not to provide a copy of this contract.

3. CHARGE IS NOT A GENUINE PRE -ESTIMATE OF LOSS

The Operator states, in their letter of rejection, that the parking charge represents a contractual breach. Under established contract law, a party can only claim for their actual, or pre-estimated losses arising directly from a breach of contract. The amount being claimed is not a genuine pre-estimate of loss The Operator has not supplied any evidence or breakdown of such losses, which I submit, would in reality be a vanishingly small sum, and nowhere near the amount demanded by the Operator. If the pre-estimate of loss contains any of the following, then I contend that these are the costs of running a business and I require The Operator to confirm to POPLA whether or not the pre-estimate of loss contains some or all elements of

• Erection and maintenance of the site signage.
• Installation, monitoring and maintenance of the ANPR systems.
• Employment of office-based administrative staff.
• Membership and other fees required to manage the business effectively including those paid to the SPA, DVLA and ICO.
• General costs including stationery, postage, etc.

The sum requested is punitive, unenforceable and amounts to a punishment. Such matters are dealt with by criminal and not civil law.

4. UNFAIR CONTRACT

There is no contract between The Operator and myself but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999:

Unfair Terms
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.

The Office of Fair Trading, Unfair Contract Terms Guidance:

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... 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.''

It has recently been found by a Senior Judge in the appeal court that The Operators signs are not clear and transparent and their charges represent a penalty which is not recoverable. This was in 21/02/2014 (original case at Watford court): 3YK50188 (AP476) CIVIL ENFORCEMENT v McCafferty on Appeal at Luton County Court. I contend that this charge is also not a recoverable sum.

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 the CPUTR 2008, the UTCCR 1999, the Equality Act 2010 and basic contract law.

5. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCACiv 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. I assert 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.

I further refer the Adjudicator to recent decisions made by POPLA, many of which are now in the public domain. These include statements such as “However, I must find as a fact that a term of the contract was that if the vehicle parked without complying with the conditions of the contract, the Appellant agreed to pay a parking charge of £85. The Operator is seeking to enforce the contract, by seeking payment of the charge which the Appellant accepted as a term of the contract by parking his vehicle …” and similar rulings. In light of the evidence of paragraph above, this interpretation can no longer be considered correct.

6. FAILURE TO COMPLY WITH THE PROTECTION OF FREEDOMS ACT2012 NO CREDITOR IDENTIFIED ON THE NOTICE TO KEEPER

Failing to include specific identification as to who ‘the Creditor’ may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to CE Ltd, there is no specific identification of the Creditor who may, in law, be CE Ltd or some other party. The Protection of Freedoms Act requires a Notice to Keeper to have words to the effect that ‘The Creditor is…’ and the Notice does not. The wording of Paragraph 9(2)(h) of Schedule 4 of the act does not indicate that the “creditor must be named, but “identified”. To “identify” a “Creditor” a parking company must do more than name that person. The driver is entitled to know the identity of the party with whom he has legally contracted
This view is supported by the Secretary of State for Transport. He has reserved to himself powers to make regulations to specify not only what must be said in a ‘Notice to Keeper’ but also what evidence should be provided.

He says “The purpose of this power is to leave flexibility to mandate the specific evidence which must accompany a notice to keeper if it becomes clear that creditors are attempting to recover parking charges without providing keepers with sufficient evidence to know whether the claim is valid”

So, in addition to CE Ltd failure to specifically identify the “Creditor”, it has failed to provide any evidence that it, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions.

The validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 9 it must, as with any statutory provision, comply with the Act. As the Notice was not compliant with the Act, it was not properly issued and therefore keeper liability does not apply. The parking company can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As the parking company have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge.

I have enclosed a copy of the Notice to Keeper form that shows a failure to identify the creditor.



7. ANPR AND DATA PROTECTION ACT COMPLIANCE

The Operator are obliged to make sure their ANPR equipment is in working order and comply with the requirements of the BPA Code of Practice part 21. I require The Operator to 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.

I also challenge The Operator to show that DPA registration (data collecting CCTV) is also compliant with legal and BPA requirements and request that they demonstrate adherence.


8. LOCAL AUTHORITY PLANNING PERMISSION

It as been known that some parking companies to not have the necessary planning permissions/consent from the local authorities for the parking limit time and installation of ANPR cameras. I put The Operator to strict proof to provide evidence that they have the necessary planning permissions/consent from the local authorities to operate this car park on a 90 minute time limit and for the installation of the ANPR cameras that are used on this site.

I respectfully request that this appeal be allowed

ColliesCarer

amronandmonty wrote: »

my rejection letter from CEL was dated 15/04/2014, does the appeal have to be in 28 days from that date

You have 28 days to submit your POPLA appeal from the date the POPLA code was generated. Use the link below to check yours is valid and when your deadline is

http://www.parkingcowboys.co.uk/popla-code-checker/

Coupon-mad

That will win but it needs a bit of tweaking. I say, get rid of 'the Equality Act 2010' because you aren't claiming to be disabled, pregnant or elderly are you? And remove point 5 and point 8 as unnecessary. The VCS case isn't relevant, not a silver bullet anyway unlike 'no GPEOL' and 'CEL v McCafferty'.

I would add to the 'ANPR' paragraph that they failed to have signs up stating how the ANPR data captured, would be used and stored (most PPCs don't, I have NEVER seen one that states it clearly). This is a requirement of the BPA CoP but also a condition of their ICO registration and, you contend, their KADOE contract with the DVLA.

I would perhaps add to this bit:

'In the event that a witness statement is submitted instead of the landowner contract itself, I require that this should be disregarded as insufficient to prove full BPA compliance, incapable of showing the restrictions, charges & details of the contract and unclear as to the capacity of the signatory. Obviously the Data Protection Act doesn't come into it but it will be interesting to see CEL's latest excuse for not showing an unredacted contract.

amronandmonty

Coupon-mad wrote: »

That will win but it needs a bit of tweaking. I say, get rid of 'the Equality Act 2010' because you aren't claiming to be disabled, pregnant or elderly are you? And remove point 5 and point 8 as unnecessary. The VCS case isn't relevant, not a silver bullet anyway unlike 'no GPEOL' and 'CEL v McCafferty'.

I would add to the 'ANPR' paragraph that they failed to have signs up stating how the ANPR data captured, would be used and stored (most PPCs don't, I have NEVER seen one that states it clearly). This is a requirement of the BPA CoP but also a condition of their ICO registration and, you contend, their KADOE contract with the DVLA.

I would perhaps add to this bit:

'In the event that a witness statement is submitted instead of the landowner contract itself, I require that this should be disregarded as insufficient to prove full BPA compliance, incapable of showing the restrictions, charges & details of the contract and unclear as to the capacity of the signatory. Obviously the Data Protection Act doesn't come into it but it will be interesting to see CEL's latest excuse for not showing an unredacted contract.

Thanks for taking the time and effort to read all that. Have amended everything you suggested, fingers crossed.

prosnap

No need for any luck.


I won my McDonalds appeal at POPLA with almost exactly the same letter.


They have also not had any business from me since then.