Crown Point EXCEL POPLA letter

ap86

Hi All.

I've drafted a POPLA appeal for my PCN received from EXCEL for leaving the site. Would you mind reading through and giving us some feedback please? Thanks in advance.

Date : xxxxxxxx
Car Reg : xxxxxxx
Location: : xxxxxxxx
Date of PCN issue : xxxxxxx
PCN Number : xxxxxxxxxxx
POPLA Verification Code: xxxxxxx

Dear POPLA Assessor,
I am writing as the registered Keeper of the above vehicle on the alleged contravention date and I'm writing this to appeal a charge sent to me by excel parking services.
I would like to appeal this notice on the following grounds:
Charge not a genuine pre-estimate of loss.
Unlawful penalty clause.
No authority to levy charges.
Information given in the notice to keeper under 8(c) is not the same as that given in the notice to driver.
Business Legitimacy
OFT Guidance of Unfair Terms
No grounds for a PCN due to proof of purchase receipt from Retail Park.

1. Charge not a genuine pre-estimate of loss
The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The Excel Parking Services signs states that a PCN would be issued for a “failure to comply” with the terms of parking, which indicates that the parking charge represents damages for a breach of the parking contract.
Accordingly, the parking charge must be a genuine pre-estimate of loss. Excel Parking Services has not provided any evidence as to how and why the parking charge is a genuine pre-estimate of loss. Therefore the parking charge is punitive and an unenforceable penalty charge.
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.“ and “19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. “
I put excel parking services to strict proof that that their charge represents a genuine pre-estimate of loss. To date excel parking services have refused to provide me with a detailed breakdown of how the amount of the “charge” was calculated in the form of documented, specific evidence applicable to this car park and this alleged incident. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included in this pre-estimate of loss.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

2. Unlawful penalty clause - revenue for excel parking services
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket, as was found in the case of VCS and Ronald Ibbotson in 2012.
This transparently punitive charge by excel parking services is a revenue-raising exercise and is therefore unenforceable in law. Excel Parking Services own website is damning in this regard.
So this is (as is proven by the Operator's own website) a revenue-raising scheme disguised as a 'parking ticket' - so in fact it is an unenforceable penalty.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

3. No authority to levy charges
A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner’s behalf and enforce for breach of contract.
Excel Parking Services must produce evidence to demonstrate that it is the landowner, or a contract that it has the authority of the landowner to issue charge notices at this location. I believe there is no contract with the landowner/occupier that entitles ''excel parking services'' to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore has no authority to issue charge notices.
I put excel parking services to strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that ''excel parking services'' produce to POPLA the contemporaneous and unredacted contract between the landowner and excel parking services. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between excel parking services and the owner/occupier, containing nothing that excel parking services can lawfully use in their own name as a mere agent, that could impact on a third party customer.
It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. 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 As this has been the case, a signed witness statement is not adequate to prove such authorisation exists and thus is not acceptable in this situation. As stated above only a signed unredacted contract provides the requisite legal standing Excel have in pursuit of parking charges.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

4. NTK not properly given (fundamental breach of POFA 2012)
As the Keeper, I am not liable for any charge if no Notice to Keeper has been properly 'given' under POFA 2012 Schedule 4 paragraph 8:
''A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met...it must:
(c)state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f)''
As the NTK states a completely different contravention than the Notice to Driver apparently did, it is a nullity, meaning there is no 'keeper liability' established. In a previous ruling, POPLA Assessor Matthew Shaw has stated that 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 8 it must, as with any statutory provision, comply with the Act.''

5. The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between Excel Parking Services and the driver.
I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because excel parking services are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) excel parking services have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The only signs are up on poles with the spy cameras and were not read nor even seen by the occupants of a car.

6. Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999'
''It is unfair to impose disproportionate sanctions for 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...''
Test of fairness
''A term is unfair if:
Contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.
5.1 Unfair terms are not enforceable against the consumer.
9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''
7 Proof of Purchase from Retail Park
Driver has proof of purchase from retail park which further invalidates the PCN from EXCEL

Regards