PCN with BPA logo but appeal offered to IPC

Sassii

Hi All

While my car was parking I got two PCNs from PCM & time difference between them is around 12hrs although I didn’t move my car (attached)
1- 1st PCN with IPC logo and PCM appeal rejection letter with IPC logo and IAS verification code as well.
2- 2nd PCN 12 hrs. later with BPA logo and mentioned POPLA appeal procedure but PCM appeal rejection letter with IPC logo and IAS verification code.

Signage on site still shown BPA logo up to now

http://www.keepandshare.com/doc16/5185/20140523083551555-pdf-5-3-meg?da=y

http://www.keepandshare.com/doc16/5186/pcm-signage-jpg-853k?da=y

Reason for both PCNs is ‘’ breach of terms and conditions’’ but in appeal rejection letters PCM tried to avoid that and used words like ‘’you agreed to pay a charge’’ & ‘’the driver agrees to pay the charge stated’’

I checked the IPC website and found PCM joined them before issuing those PCNs by 4 days and I’m going to complaint to IPC by any way and BPA.

I won POPLA appeals against PCM several time but I don’t know if it good idea to mention the mistakes they do as misleading in their PCNs and appeal rejection letters for IAS appeal as below:

‘’PCM mislead me for the reason of this PCN and submit two different reasons for this PCN’’

PCM misleads me for that PCN as:
a- The reason of this invoice as stated in PCN (attached) for ‘’ breach of the terms and conditions) which it’s under POFA 2012
b- But in PCM appeal rejection letter said ‘’ you agree to pay a charge’’ and ‘’ the driver agrees to pay the charge stated’’ which it’s under Unfair Terms in Consumer Contracts Regulations 1999.
c- Signage on site shows PCM complies with BPA COP not with IPC COP which that mislead my and west my time during complaint and appeal process.
The sign is clearly not creating a contractual agreement so there is no genuine fee to park 'not in accordance' (i.e. in breach) of the terms. You cannot enter into a contract to do something that is not permitted.

So I hope anyone can advise me for that.

Thanks

Coupon-mad

Yes that's perfectly reasonable to add to the IPC appeal. Also that the signage talks about 'failure to comply' (attach a photo like you have here) and state that the charge is not a GPEOL. And in any case, point out that the IPC does not allow this business model (only contractual fees which this is not) so this case is a breach of their own Code of Practice. And the usual other stuff like 'no standing/authority from the landowner' and no contract formed with the driver - and anything else you can find they've breached in the IPC CoP - you'll need to have a read though it.

Remember the IPC deadline to appeal to the IAS is shorter than POPLA, it's NOT 28 days. And the IPC has recently (this week) agreed to remove the requirement to say who was driving if the registered keeper appeals. So you don't have to tick any boxes about who the driver was.

Sassii

Again PCM cancelled the PCN just after appealed to IAS as they did with BPA.

Thanks for advise

Coupon-mad

Well done, just saw your update!

Sassii

Find below my appeal letter to help others who still in doubt to appeal to IPC / IAS. Please find IAS reply at the end of the letter


Dear IAS Adjudicator
Vehicle Registration:
PCN ref:
Date of PCN to keeper:

Appeal verification code:
I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.

1. PCM doesn’t comply with Protection Of Freedom Act 2012.
2. PCM doesn’t comply with Terms in Consumer Contracts Regulations 1999.
3. The amount demanded is not a Genuine Pre-estimate of loss.
4. I require the contract with the landowner is produced, as PCM are not the landowners and I contend they have no legal standing to pursue this charge.
5. PCM mislead me for the reason of this PCN and submit two different reasons for that.
6. PCM doesn’t comply with IPC Code. (Photos evidence attached)
7. As I am a resident of ??????? Development, I can confirm that PCM started enforcement without offering/delivering to me a residents' parking permit, so the required elements to create a 'parking contract' with me have not been met.
8. PCM doesn’t provide breach evidence of grace time.

Please find below detailed information about the points raised above.

1- PCM doesn’t comply with Protection Of Freedom Act 2012.section 7-2 (a), & 8-2(a) & 9-2(a) which stated clearly that ‘’ The notice must specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates’’. And it’s clearly seen from PCN (attached) that there is no period of parking specified in it at all.
2- PCM doesn’t comply with Terms in Consumer Contracts Regulations 1999. As:

In the Unfair Terms in Consumer Contracts Regulations 1999:-

''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.''

Also the OFT ‘Unfair Contract Terms Guidance’:
Group 18(a): Allowing the supplier to impose unfair financial burdens
‘'18.1.3 ...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.’’
A driver / keeper cannot enter into a contract to pay for something that is expressly prohibited ( Sign attached) or unauthorised because that would make it a disguised penalty, according to the Office of Fair Trading. The signage and PCM appeal rejection letter are ambiguous but both give away the fact that it is not a contractual fee but a charge for 'unauthorised parking'. A genuine contractual fee would have a payment mechanism related to the true cost of the supply of a parking space, not charge the same punitive amount whether the car stayed for 1 minute or 24 hours.

This charge represents 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.’
3- This charge does not represent a genuine pre-estimate of loss and therefore is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. PCM may try to allege their minimal signage creates a contractual agreement, but this is denied. In any case, PCM's PCN clearly states that this parking incident relates to an alleged 'breach of contractual terms & conditions' (their words). So the entirety of the parking charge must be a genuine pre-estimate of loss in order to be possibly enforceable. PCM in this case & up to now didn’t send to me any supporting documents to justify £100 as a genuine pre-estimate of loss.

The Office of Fair Trading has stated to the BPA Ltd 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. Parking charges cannot include tax-deductible business costs for running a parking company, such as site signage and maintenance, staff employment, membership fees, postage, etc. It shouldn’t be recoverable as it is being enforced purely as a penalty. Since there is no other income at this site, these PCNs represent the only profit for PCM and it is clear that they cannot be operating at a permanent loss.

4- I put PCM to strict proof that they have the proper legal authorisation from the landowner to contract with drivers and to enforce charges in their own name as creditor in the courts for breach of contract. To show compliance with the IPC COP, I require PCM to produce the landowner contract - not just an inadmissible 'witness statement' saying such a contract exists - since they do not own the land. I contend that any business arrangement for parking services (if it exists) is merely an agency matter between the landowner and PCM and cannot impact upon drivers or keepers whose tenancy grants them the overriding legal right to peaceful enjoyment of their property (including parking spaces).
It has also been widely reported that some parking companies have provided photocopied “witness statements” instead of the relevant contract. These highly questionable documents from parking operators have been exposed in the public domain as sometimes having had the date added after 'witness signature' by another person, adding a random date to suit a court or IAS case. These witness statements are therefore not relevant to a specific event and the details are far too unreliable to confirm compliance of the contract as defined in the IPC CoP and would fail to meet the level of certainty required for a IAS or court decision. If PCM produce a 'witness statement' I contend that there is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted instead of the landowner contract itself, that this is disregarded and that the Chief Adjudicator is required to investigate this issue and consider carefully the serious irregularities known about these documents if the assessor in my case is minded to consider one as evidence.

5- PCM misleads me for that PCN as:
a- The reason of this invoice as stated in PCN (attached) for ‘’ breach of the terms and conditions) which it’s under POFA 2012
b- But in PCM appeal rejection letter said ‘’ you agree to pay a charge’’ and ‘’ the driver agrees to pay the charge stated’’ which it’s under Unfair Terms in Consumer Contracts Regulations 1999.
c- Signage on site shows PCM complies with BPA COP not with IPC COP which that mislead my and west my time during complaint and appeal process.
The sign is clearly not creating a contractual agreement so there is no genuine fee to park 'not in accordance' (i.e. in breach) of the terms. You cannot enter into a contract to do something that is not permitted.
6- PCM doesn’t comply with IPC COP as members of the IPC who operate within the private parking sector are required to subscribe to the AOS and adhere to this Code Of Practice which defines the core standards necessary to ensure transparency and fairness. As:
a. There are no car park entrance signs at all. Specially for visitors car Park (photos attached)
b. Signs in this car park are very hard to read and understand and some signs are 3 meters high. IPC COP Schedule 1- Signage stated that‘’ no part of the sign which contains relevant text should be over 6’, or under 12”, from ground level’’. (Photos attached)
c. As you enter into the area there are signs mounted lighting pole against the right & left hand side which in order to read requires the driver to look 90 degrees away from the road ahead and that doesn’t comply with IPC Code PART B, 2 Signs & Schedule 1 which stated that ‘’ The sign must be readable from far enough away so that drivers can read all of the Group A and Group B text without needing to look more than 10 degrees away from the road ahead’’. (Photos attached)
d. Some signs placed in very dark area which is impossible to read and that doesn’t comply with IPC Code Schedule 1 Contrast and illumination which stated that ‘’If signs cannot be read then resulting charges that depend upon their content will not be enforceable’’.
e. The capital height of the Group 1 & 2 text size does not comply with IPC COP Schedule 1 Text size (for approach speed of traffic between 25-39 mph Group 1 text is 90mm and Group 2 is 45mm). From the attached photos it clearly shows that the Group 1 capital height in the signage around 25mm only and group 2 less than 10mm.
f. PCM doesn’t provide any breaching evidence of grace period at all although I asked them for that in my appealing to them (Attached).


7- PCM failed to supply me with a resident car parking permit. Omitting to send me a permit before attempting to enforce charges puts PCM in breach of their landowner contract because I contend that PCM undertake to enforce on this site only after permits have been issued. It also means there was/is no contract with any driver of my car or myself, because as a resident - not a trespasser – (utility bill attached as prove of resident) I can only possibly agree to the 'offer' of a parking scheme and consideration (the parking space) when I accept the terms of such a scheme in advance of the parking event, by the handing over/delivery of a permit that PCM undertook to send me. They failed to do so, therefore was no meeting of minds, no offer, no consideration and no acceptance so the elements of a contract are conspicuous by their absence.
PCM also force residents to buy permits for the visitor’s car park which it’s allowed to park free for residents before PCM started enforcement.


Finally, a third party agent cannot pursue such a charge anyway, as was found in ParkingEye v Sharma: Case No. 3QT62646 in the Brentford County Court23/10/2013. District Judge Jenkins dismissed the case on the grounds that the parking contract was a commercial matter between Parking Eye and the landowner, and didn’t create any contractual relationship with motorists who used the car park. I submit that this applies in this case as well.

Yours,


The IAS reply was:

Thank you for your appeal to the Independent Appeals Service (IAS). We have received the outcome and
the IPC can inform that your appeal has been successful. This means the operator has cancelled your parking
charge notice (PCN) (no. ). As the PCN has been cancelled no further action needs to be
taken and the case has been closed.
Yours sincerely,
The Independent Parking Committee
4 The Stables
Red Cow Yard
Knutsford
Cheshire
WA16 6DG
w :

IsseyMiyake

Sassii wrote: »

Find below my appeal letter to help others who still in doubt to appeal to IPC / IAS. Please find IAS reply at the end of the letter


Dear IAS Adjudicator
Vehicle Registration:
PCN ref:
Date of PCN to keeper:

Appeal verification code:
I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.

1. PCM doesn’t comply with Protection Of Freedom Act 2012.
2. PCM doesn’t comply with Terms in Consumer Contracts Regulations 1999.
3. The amount demanded is not a Genuine Pre-estimate of loss.
4. I require the contract with the landowner is produced, as PCM are not the landowners and I contend they have no legal standing to pursue this charge.
5. PCM mislead me for the reason of this PCN and submit two different reasons for that.
6. PCM doesn’t comply with IPC Code. (Photos evidence attached)
7. As I am a resident of ??????? Development, I can confirm that PCM started enforcement without offering/delivering to me a residents' parking permit, so the required elements to create a 'parking contract' with me have not been met.
8. PCM doesn’t provide breach evidence of grace time.

Please find below detailed information about the points raised above.

1- PCM doesn’t comply with Protection Of Freedom Act 2012.section 7-2 (a), & 8-2(a) & 9-2(a) which stated clearly that ‘’ The notice must specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates’’. And it’s clearly seen from PCN (attached) that there is no period of parking specified in it at all.
2- PCM doesn’t comply with Terms in Consumer Contracts Regulations 1999. As:

In the Unfair Terms in Consumer Contracts Regulations 1999:-

''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.''

Also the OFT ‘Unfair Contract Terms Guidance’:
Group 18(a): Allowing the supplier to impose unfair financial burdens
‘'18.1.3 ...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.’’
A driver / keeper cannot enter into a contract to pay for something that is expressly prohibited ( Sign attached) or unauthorised because that would make it a disguised penalty, according to the Office of Fair Trading. The signage and PCM appeal rejection letter are ambiguous but both give away the fact that it is not a contractual fee but a charge for 'unauthorised parking'. A genuine contractual fee would have a payment mechanism related to the true cost of the supply of a parking space, not charge the same punitive amount whether the car stayed for 1 minute or 24 hours.

This charge represents 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.’
3- This charge does not represent a genuine pre-estimate of loss and therefore is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. PCM may try to allege their minimal signage creates a contractual agreement, but this is denied. In any case, PCM's PCN clearly states that this parking incident relates to an alleged 'breach of contractual terms & conditions' (their words). So the entirety of the parking charge must be a genuine pre-estimate of loss in order to be possibly enforceable. PCM in this case & up to now didn’t send to me any supporting documents to justify £100 as a genuine pre-estimate of loss.

The Office of Fair Trading has stated to the BPA Ltd 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. Parking charges cannot include tax-deductible business costs for running a parking company, such as site signage and maintenance, staff employment, membership fees, postage, etc. It shouldn’t be recoverable as it is being enforced purely as a penalty. Since there is no other income at this site, these PCNs represent the only profit for PCM and it is clear that they cannot be operating at a permanent loss.

4- I put PCM to strict proof that they have the proper legal authorisation from the landowner to contract with drivers and to enforce charges in their own name as creditor in the courts for breach of contract. To show compliance with the IPC COP, I require PCM to produce the landowner contract - not just an inadmissible 'witness statement' saying such a contract exists - since they do not own the land. I contend that any business arrangement for parking services (if it exists) is merely an agency matter between the landowner and PCM and cannot impact upon drivers or keepers whose tenancy grants them the overriding legal right to peaceful enjoyment of their property (including parking spaces).
It has also been widely reported that some parking companies have provided photocopied “witness statements” instead of the relevant contract. These highly questionable documents from parking operators have been exposed in the public domain as sometimes having had the date added after 'witness signature' by another person, adding a random date to suit a court or IAS case. These witness statements are therefore not relevant to a specific event and the details are far too unreliable to confirm compliance of the contract as defined in the IPC CoP and would fail to meet the level of certainty required for a IAS or court decision. If PCM produce a 'witness statement' I contend that there is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted instead of the landowner contract itself, that this is disregarded and that the Chief Adjudicator is required to investigate this issue and consider carefully the serious irregularities known about these documents if the assessor in my case is minded to consider one as evidence.

5- PCM misleads me for that PCN as:
a- The reason of this invoice as stated in PCN (attached) for ‘’ breach of the terms and conditions) which it’s under POFA 2012
b- But in PCM appeal rejection letter said ‘’ you agree to pay a charge’’ and ‘’ the driver agrees to pay the charge stated’’ which it’s under Unfair Terms in Consumer Contracts Regulations 1999.
c- Signage on site shows PCM complies with BPA COP not with IPC COP which that mislead my and west my time during complaint and appeal process.
The sign is clearly not creating a contractual agreement so there is no genuine fee to park 'not in accordance' (i.e. in breach) of the terms. You cannot enter into a contract to do something that is not permitted.
6- PCM doesn’t comply with IPC COP as members of the IPC who operate within the private parking sector are required to subscribe to the AOS and adhere to this Code Of Practice which defines the core standards necessary to ensure transparency and fairness. As:
a. There are no car park entrance signs at all. Specially for visitors car Park (photos attached)
b. Signs in this car park are very hard to read and understand and some signs are 3 meters high. IPC COP Schedule 1- Signage stated that‘’ no part of the sign which contains relevant text should be over 6’, or under 12”, from ground level’’. (Photos attached)
c. As you enter into the area there are signs mounted lighting pole against the right & left hand side which in order to read requires the driver to look 90 degrees away from the road ahead and that doesn’t comply with IPC Code PART B, 2 Signs & Schedule 1 which stated that ‘’ The sign must be readable from far enough away so that drivers can read all of the Group A and Group B text without needing to look more than 10 degrees away from the road ahead’’. (Photos attached)
d. Some signs placed in very dark area which is impossible to read and that doesn’t comply with IPC Code Schedule 1 Contrast and illumination which stated that ‘’If signs cannot be read then resulting charges that depend upon their content will not be enforceable’’.
e. The capital height of the Group 1 & 2 text size does not comply with IPC COP Schedule 1 Text size (for approach speed of traffic between 25-39 mph Group 1 text is 90mm and Group 2 is 45mm). From the attached photos it clearly shows that the Group 1 capital height in the signage around 25mm only and group 2 less than 10mm.
f. PCM doesn’t provide any breaching evidence of grace period at all although I asked them for that in my appealing to them (Attached).


7- PCM failed to supply me with a resident car parking permit. Omitting to send me a permit before attempting to enforce charges puts PCM in breach of their landowner contract because I contend that PCM undertake to enforce on this site only after permits have been issued. It also means there was/is no contract with any driver of my car or myself, because as a resident - not a trespasser – (utility bill attached as prove of resident) I can only possibly agree to the 'offer' of a parking scheme and consideration (the parking space) when I accept the terms of such a scheme in advance of the parking event, by the handing over/delivery of a permit that PCM undertook to send me. They failed to do so, therefore was no meeting of minds, no offer, no consideration and no acceptance so the elements of a contract are conspicuous by their absence.
PCM also force residents to buy permits for the visitor’s car park which it’s allowed to park free for residents before PCM started enforcement.


Finally, a third party agent cannot pursue such a charge anyway, as was found in ParkingEye v Sharma: Case No. 3QT62646 in the Brentford County Court23/10/2013. District Judge Jenkins dismissed the case on the grounds that the parking contract was a commercial matter between Parking Eye and the landowner, and didn’t create any contractual relationship with motorists who used the car park. I submit that this applies in this case as well.

Yours,


The IAS reply was:

Thank you for your appeal to the Independent Appeals Service (IAS). We have received the outcome and
the IPC can inform that your appeal has been successful. This means the operator has cancelled your parking
charge notice (PCN) (no. ). As the PCN has been cancelled no further action needs to be
taken and the case has been closed.
Yours sincerely,
The Independent Parking Committee
4 The Stables
Red Cow Yard
Knutsford
Cheshire
WA16 6DG
w :

Hello there, I received a windscreen ticket today from PCM. I parked in a visitors bay which I thought required no permit.

The reason for the issue of this was 'Parked without clearly displaying a valid PCM UK Ltd permit (at time of enforcement)'.

In regards to appealing do I just copy and paste your appeal letter to them with slight changes? Or do I wait for NTK?

Thanks

Fruitcake

IsseyMiyake wrote: »

Hello there, I received a windscreen ticket today from PCM. I parked in a visitors bay which I thought required no permit.

The reason for the issue of this was 'Parked without clearly displaying a valid PCM UK Ltd permit (at time of enforcement)'.

In regards to appealing do I just copy and paste your appeal letter to them with slight changes? Or do I wait for NTK?

Thanks

Please read the Sticky thread for NEWBIES then start your own thread, not hijack someone else's.