POPLA Appeal Check - Excel Parking Peel Centre

SimBurt

Hi


I sent the template letter after receipt of the Parking Charge Notice and have received the following reply:


We note theta you wish to appeal the PCN within your right as the Registered Keeper of the vehicle in question.May we remind you that as the Registered Keeper of the above vehicle on the date the contractually agreed Terms and Conditions were breached you were given the option to provide a serviceable name and UK address for the driver so that we may pursue them.As you have declined to do this we are now within our rights to recover from the Registered Keeper under the Protection of Freedoms Act 2012.

We have considered the points you have raised in your appeal and our responses are as follows:

The Peel Centre in Stockport is a pay on entry Pay & Display car park.The Terms and Conditions of the Car Park require for a valid Pay & Display (P&D) Ticket to be purchased after entering the car park, detailing the full vehicle registration mark (VRM) i.e. #######.Management of this site is conducted via ANPR cameras that take photographs of vehicles entering and exiting the car park and work in conjunction with the Pay and Display machines in situ.

We can confirm that the charges for this Notice are set in place by the land owner whom Excel Parking Services Ltd manages the car park on behalf of, and the charges are in line with the British Parking Associations Code of Practice for Parking Enforcement on Private Land and Unregulated Private Car Parks.The code recommends that the Maximum Parking Charge shall not exceed £100.00 As our charges follow this guideline they are deemed reasonable.We would refer you to a recent decision in the case of Parking Eye v. Mr Kevin Shelley (2013) and suggest you read the full transcript.

We consider the amount of the PCN as a reasonable charge for liquidated damages in respect ofa breach of the parking contract and contend that it is not a ‘penalty’ for a number of reasons.We have calculated this sum as a genuine pre-estimate of our losses as we incur significant costs in managing the parking location to ensure compliance to the stated Terms and Conditions and to follow up on any breaches of these identified.A full breakdown of loss will be provided at the request of a judge, but once again, we would refer you to the outcome of the case: Parking Eye v. Mr Kevin Shelley (2013).

We maintain that our signs are clearly visible and meet the requirements set by the British Parking Association guidelines.As established members of the British Parking Association, we adhere to their Code of Practice for Private Enforcement on Private Land and Unregulated Car Parks.This Code of Practice gives recommendations in regards to the signage within the car park. The signs within the car park fully comply with the recommendations outlined in the Code of Practice and are therefore deemed reasonable.

Excel Parking Services Ltd are acting on behalf of the landowner on enforcing the enclosed Terms and Conditions on their land.We hold a contract with them which allows us to enforce contractually agreed Terms and Conditions.We cannot, at this time, provide a copy of our contract due to it being commercially sensitive.Our signs on site make it clear that we operate/manage the car park.If necessary, we can provide a copy of the contract between ourselves and the landowner, should a judge request one in court.We are contracted by the landowner/landholder to enforce the agreed Terms and Conditions to ensure that these are not breached.

A person can enter into a contract either by expressly agreeing to do so or by acting in such a way that he/she can be said to have implied agreement to enter into a contract.Where notice is given to a motorist of the consequences of parking in a particular area, by implications a motorist enters into a contract with Excel Parking Services Limited and accepts the terms set out of the Notice by proceeding to park.As there was a contract between yourself and Excel Parking Services Ltd, there was no civil trespass.

Following your comments on the Status of our Document, please note that it is a Parking Charge Notice.It is not an invoice.

In regards to the issue of any claim of harassment, it must be noted that under the Administration of Justice Act 1970, the relevant Section 40 does not apply to anything done by a person which is reasonable (and otherwise legal) for the purpose of enforcement of any liabilityby legal process.Due to the fact that the aforementioned contract was created, the driver has agreed to the Terms and Conditions including being liable for a charge in the event of a contravention.To this end we are within our rights and acting in accordance with the Administration of Justice Act 1970.

When parking on private land, a motorist freely enters into an agreement to abide by the conditions of parking in return for permission to park.It is the motorists responsibility to ensure that he or she abides by any clearly displayed conditions of parking.It is clear that the terms of parking started that a pay and display ticket must be displayed, or the motorist would face liability for a parking charge.We would note that you had the opportunity to leave the car park if you could not comply with the terms of parking.

As such we have decided to reject your appeal for the reasons as outlined above.

As a gesture of goodwill, we are willing to re offer the discounted rate.The required payment of £60 is to be received within our office by 13th June 2014.If the payment is not received by this date the amount payable will increase to £100.00.Failure to comply may result in the issue of court proceedings whereby further costs will be incurred.

You do have the option to appeal to the ‘Parking on Private Land Appeals’ (POPLA) service, which is an independent body.Details of how to appeal to the POPLA service are attached to this letter in the form of both guidance notes and an appeal form.Please carefully read the guidance notes, particularly those relating to ‘grounds of appeal’. It is important to note that if you wish to appeal to POPLA, the discount offer will no longer apply and the full charge of £100.00 will be pursued should your appeal be rejected by POPLA.Further costs may be incurred should it be necessary for us to recover the outstanding charge using debt recovery and/or court action.



I have prepared the following POPLA appeal:


Dear POPLA adjudicator,

I am writing to appeal against a parking charge levied by Excel Parking Services Ltd on DD/MM/YYYY. 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 “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 provided a copy of the contract with the landowner, which I have requested, 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 un-redacted 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) ANPR - Inaccuracy and Non-compliance, including lack of ANPR data usage signs

I require the Operator to present records as to 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. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times and yet I contend the driver was a customer of Nandos which has separate (free) parking terms anyway.
In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary with records and photos.

4) 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.'

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 - The charge of £100 imposed by Excel constitutes an unfair term as it is disproportionate with respect to the alleged infringement.
yours,


Will this be ok? I was a bit concerned at the in-depth response I received from but guess its probably just a template.

Redx

looks ok to me but I would add numbered bullet points just before the main body of the appeal too , for clarity

I would also add a section on signage too

see posts #13 and #14 here https://forums.moneysavingexpert.com/discussion/4983977 for links

SimBurt

Thanks for that Redx, much appreciated. Now looks like this with your suggested amendments:




Dear POPLA adjudicator,

I am writing to appeal against a parking charge levied by Excel Parking Services Ltd on DD/MM/YYYY. I am the registered keeper of the vehicle concerned.

The grounds for my appeal are as follows :

• No genuine pre-estimate of loss
• Legal capacity to issue parking charges
• ANPR - Inaccuracy and Non-compliance, including lack of ANPR data usage signs
• Unfair terms
• Unclear and Non-compliant Signage
  

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 “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 refused 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 un-redacted 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) ANPR - Inaccuracy and Non-compliance, including lack of ANPR data usage signs

I require the Operator to present records as to 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. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times and yet I contend the driver was a customer of Nandos which has separate (free) parking terms anyway.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary with records and photos.

4) 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.'

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 - The charge of £100 imposed by Excel constitutes an unfair term as it is disproportionate with respect to the alleged infringement.



5) Unclear and Non-Compliant Signage

Due to their high position, bright colours, distracting pictograms and the barely legible size of the small print, the signs in this car park are very hard to read and understand.

I contend that the signs and any core parking terms Excel are relying upon were too small for any driver to see, read or understand when driving into the car park. I request that POPLA should check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs and machines in that car park (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach.

Yours

Guys_Dad

Out of interest, you say that Nandos has a free car park. Now I don't know this car park although I have read about it numerous times.

Are you saying that within the Peel car park there is a free parking area for Nandos customers with some time limit? This could be most helpful for future .

Redx

afaik nandos does NOT have a free car park , only KFC have a free parking area and even then its only for 15 minutes

my understanding is that parking at or near nando`s requires a parking ticket to be bought , in fact the whole car park there is based on one anpr camera at entry and another at exit , with parking controlled by ticket machines with registration entry at point of sale

so basically , NO free parking and no waiting either

the excel reply clearly states this

Guys_Dad

Thanks.

SlimBurt - here is a rather long thread that shows you can win here. https://forums.moneysavingexpert.com/discussion/4730394

SimBurt

I've removed the reference to Nandos, to be honest I just missed it, removed the other references to nandos already.


Thanks for everyones help and suggestions with this and I'll let you know the outcome

Coupon-mad

We have calculated this sum as a genuine pre-estimate of our losses as we incur significant costs in managing the parking location to ensure compliance to the stated Terms and Conditions and to follow up on any breaches of these identified.

That's quite amusing seeing as a little bird here a while back said that Excel ALLEGEDLY are paid by the Peel Centre to faff about with signs and ANPR equipment each year so they can hardly claim the same costs again from victims and pretend it's a loss. 'Shome Mistake here shurely' as they say?