PCN from PCM Ltd. Stage 2: IPC/IAS Appeal

Popcorn141

Evidence for the appeal:
hxxp://s1369.photobucket.com/user/TSD16/media/EvidenceNR_zpsb9f86d17.jpg.html
hxxp://s1369.photobucket.com/user/TSD16/media/EvidenceNR2_zps9360e443.jpg.html

PCM sign:
hxxp://s1369.photobucket.com/user/TSD16/media/Evidence4_zpse4d04c74.jpeg.html

Dee140157

Evidence for the appeal:
[url]Http://s1369.photobucket.com/user/TSD16/media/EvidenceNR_zpsb9f86d17.jpg.html[/url]
[url]Http://s1369.photobucket.com/user/TSD16/media/EvidenceNR2_zps9360e443.jpg.html[/url]

PCM sign:
[url]Http://s1369.photobucket.com/user/TSD16/media/Evidence4_zpse4d04c74.jpeg.html[/url]

Coupon-mad

Nice pics of an absence of signs and no lines in those 'parking bays' which clearly invite a driver to believe they can park there without restriction (make sure that's in your appeal).

And as for the sign I think there's more appeal grounds in the fact it says 'retrospective evidence of authority to park will not be accepted'. So that confirms that the sign is setting out that one set of drivers are 'authorised' to park and one set are not (those without a permit). Therefore there is no consideration flowing from PCM to that second group of drivers. If a firm wanted to make an 'offer to park' by way of consideration to the second group they should word their signs that parking is also allowed/authorised for everyone (without a permit or out of a bay) at a daily tariff rate of £100. One cannot contract to be allowed to do something the sign states as not allowed/unauthorised'.

And make sure you go in strong about the pics showing the road has no signs and lines visible from many of the bays or parking places so no driver can have been expected to have entered into any contract. A lack of signage on a site is a breach of the IPC Code of Practice (cite which parts).

Can you show us the draft appeal, how long have you got to submit it now? Want to try to make this stronger.

Popcorn141

Assuming the 21 days of appeal includes weekends I've got until the 26/08/14, from the 5/08/14 which is when I received my rejection letter. Thanks again, coupon-mad I have mentioned that there were no lines to notify the driver that parking was controlled within the area briefly so I'll add some more detail. Atm my draft is still a bit similar to the one above as I have been busy with work, I will attempt to work on it tonight and post a copy tomorrow.

Coupon-mad

I think 21 days is from the DATE of the rejection letter (not the date you got it) so be careful, don't leave it.

Popcorn141

Apologies for not being very clear the 5/08/14 is the date on the rejection letter. I'm planning on having the appeal letter completed by Saturday, giving me a few days to iron out any imperfections.

Atm my draft is as stands below, following coupon-mad's advise I've looked more into the IPC CoP and referenced the requirements within my appeal along with backing up my points with evidence. It is still rusty in places as I think i may have waffled, I have also removed the GPEOL paragraphs as they need more work I shall have them posted by tomorrow evening if all goes well.

PCN Number: XXXX
Date PCN Issued: XXXX

Dear Indepent Parking Committee,

I am the registered keeper of vehicle reg: XXXX and I contend that I am not liable for the parking charge and the vehicle was not improperly parked. I wish to appeal against the notice issued by Parking Control Management UK Ltd. (PCM) on the following grounds:


1) Failure to Comply with Statutory Requirements under Paragraph 8 of POFA 2012, Schedule 4 (see file attachments NTK 1 & 2)

There are omissions of the statutory wording required under paragraph 8 of POFA 2012, Schedule 4. PCM LTD has failed to comply with the statutory requirements under Schedule 4 in the NTK. The NTK does not inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full as required on para. 8(2)(b). The NTK does not invite the keeper to pass the Notice on to the driver, as required in para. 8(2)(e). Moreover, the NTK does not state that the keeper would become liable for the charge only if the applicable conditions under this Schedule are met which is not in accordance with para. 8(2)(f). Furthermore, paragraph 8(2)(h) states that the NTK must identify the creditor and specify how and whom the payment or notification to the creditor may be made. The NTK in this matter does not identify the creditor and does not comply with this requirement. In addition, the NTK failed to inform the keeper of the arrangements and contact details for resolution of disputes or complaints to the Information Commissioner (see attached copy).

The NTK from PCM LTD indicates that they are a member of the IPC and abide by the committees’ CoP. The failings identified above of the NTK also breach the IPC CoP page 14, Part C para. 2. Where an Act states that such a Notice ‘must’ include certain prescribed words, any omission renders a document a nullity.

Due to being non-compliant with the IPC CoP and Schedule 4 of the POFA 2012, PCM LTD are not able to establish keeper liability of the vehicle for the alleged parking charge. Therefore, any action against the keep should be withdrawn.

2) Inadequate and Lack of IPC Compliant Signage (see file attachments Signage 1 and 2)

The signage located at the site was not seen, formed no contract with the driver, switched between ‘contractual fee’ and ‘unauthorised parking’ and does not meet the IPC Code of Practice (CoP) guideline requirements. Firstly terms are only imported into a contract if they are clear and prominent that the party ‘must’ have known about it and agreed. The signage present at the location of the alleged contravention does not identify PCM LTD as a creditor for any charges that arise out of the contract or damages following a breach of the contract (see attached copies). Therefore, this cannot form a contract between the driver and landowner or PCM LTD. Consequently, should a contract be found to exist between the landowner and the driver, PCM LTD not having been indetified as a creditor are unable to pursue this claim as stated on page 10 [Part B: 1(2.1)] and page 27 [Other Signs: (1)] of the IPC CoP. To date, no authority has been provided that establishes that PCM LTD are authorised to pursue this claim on behalf of the landowner, which also does not comply POFA, 2012. When asked for proof of contract between PCM LTD and the landowner PCM were reluctant to comply and stated “This land is private land and is managed and operated by Parking Control Management” (see attached rejection letter copy).

Upon entering the location where the contravention took place, the road had no signs and lines visible from many of the parking bays so no driver can have been expected to have entered into any contract. There was one non-visible sign approximately 2 metres above on a lamp post hidden behind a tree on the other side of the road from where the vehicle was positioned (see attached copies). This sign was completely obstructed should a car park away from it. Within the IPC CoP Schedule 1 – Signage it clearly states on page 25 signage should “Signs must, where practicable, be placed at the entrance to a site. Otherwise the signage within the site must be such that it is obivious to the motorist” and on page 27 [Other Signs (4)] “Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle must be able to see them clearly upon entering the site or parking a vehicle within the site”. A lack of signage on a site is a breach of the IPC CoP requirements stated. Furthermore, due to the high positioning along with the overall minute size of text used, the signage is barely legible making it difficult to read and understand. On page 26 of IPC CoP it clearly states that “The signs must be readable from far anough away so that drivers can read akk the of the Group A and Group B text without needing to look more than 10 degrees away from the road ahead” and on page 27 “The signs must be at a suitable height – is suggest that no part of the sign which contains relevant text should be over 6’, or under 12”, from the ground level. Such text must be of a size which is easily legible having regard to the location and in any event should not be less than 5mm in height” (see attached copy). However, the signage location was not prominent. I contend that the signs and any core parking terms PCM LTD are relying upon being too small for any driver to see, read and understand whilst driving or stationary, as the text containing the information is not easily legible as it is WRITTEN ALL IN CAPITAL LETTERS, which for anyone dyslexic can cause major problems. The British Dyslexia association and Gov.uk state that “Use a plain, evenly space sans seif font such as Arial and Comic Sans. Alternatives include Verdana, Tahoma, Century Gothic, Trebuchet. AVOID TEXT IN BLOCK CAPITALS: this is much harder to read”.

In addition the terms are misleading with wording that dresses up the charge as a ‘contractual’ fee, which it is not, (see point a). The fact that the sign states “Restrospective evidence of authority to park will not be accepted”, confirming that the sign is setting out that one group of drivers are ‘authorised’ to park and the other group are not (those without a permit). Therefore, there is no consideration/acceptance flowing from PCM to the second group of drivers to form a contract. If a firm wanted to make an ‘offer to park’ by way of consideration to the second group they should word there signs along the lines of parking is allowed/authorised for everyone (without a permit or out of a bay) at a daily tariff rate of £100. One cannot contract to be allowed to do something the sign states as not ‘allowed/unauthorised’. Similarly, the IPC CoP as on page 27 [Other Signs (5)] states that signs must “Have clear and unambiguous wording and be designed such as to leave the driver under no doubt that he is entering into a contract with the creditor or committing trespass as the case may be” (see attached signage copies). The sign fails this requirement as there was no agreement to pay. This is a non-negotiated and unexpected third party ‘charge’ imposed upon legitimate motorists who are not ‘customers’ of PCM LTD and not expecting to read a contract when they park in an unmarked parking bay by. It would seen/accepted by the driver. That it is not the case, the absence of signage and yellow lines to alert a driver to read a sign on a lamp post, which would otherwise be overlooked due to its hidden location clearly invite a driver to believe they can park there without restriction (see attached copies).

The signage is ambiguous and contradictory. On the Notice to Keeper (NTK) the sum is stated as a contravention for ‘breaching’ the terms and conditions’s yet the sign misleadingly alleges a ‘contractual’ sum (see attached NTK copies). If so, there should be a payment mechanism and a VAT invoice. There is none. This is not a transparent contract and is disguised penalty. Terms must be clear otherwise under the doctrine of contra proferentem the interpretation that favours the consumer applies. I request the IPC to check the PCM LTD’s evidence and signage map/photos on this point and compare the signs to the IPC Code of Practice requirements. I contend the signs in place on this land do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]. All of the points mentioned clearly justify how PCM LTD have failed to fulfil the IPC CoP requirements with regard to signage.

a) The Charge is Not a Contractual Fee – it is a disguised breach

PCM LTD has attempted to avoid the necessity of having to justify a pre-estimate of loss by stating that this is a contractually agreed fee on their signage. However, on both the NTK and the rejection letter to my appeal PCM LTD states respectively that the charge is for ‘breaching’ the terms and conditions of parking (see attached copies). Additionally, the wording on their sign also states that “unauthorised parking may result in your vehicle being issued with a parking charge notice”. The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be considered, it would have to mean that permission to park without a permit was given providing a fee was paid. Clearly permission to “park in breach” cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.

3) No Contractual Agreement with the Driver

The sign at the location where the car was parked does not create a valid contract between the driver of the vehicle and the landowner whereby the driver agrees to pay £100 consideration for the privilege to park the car (see attached signage copies). The signage quite clearly states that there is ‘No Unauthorized Parking’ and “Parking is permitted for: vehicles fully displaying a valid parking permit within the windscreen and parked within an area appropriate to that permit” (see attached signage copies). This statement clearly indicates that there is no valid contract for the driver to enter into, since by definition they are not allowed to park without a permit. If a driver parks on the site without displaying a valid parking permit the driver is not permitted to park and by doing so is acting in breach of the contract for parking. Therefore, any charges that arise from the wording should be treated as a penalty. To attempt to levy a charge of £100 in those circumstances is nothing more than an attempt to ‘fine’ the driver for parking on private land.

The signage goes on to state that “By parking or remaining on the site otherwise than in accordance with the above you, the driver, are agreeing to follow the contractual terms”. Moreover, this involves agreeing to pay £100 consideration. However, the wording does not suggest that a contract is being entered into by the driver, instead it is worded clearly as a threat that if a driver parks in that location without a valid parking permit then they will be subject to a penalty charge of £100. The wording is clearly intended as a deterrent and therefore any charges that flow from that wording should be treated as penalty irrespective of the attempt in the signage to disguise this as ‘consideration’ for the right to park. This interpretation of the signage is supporting the disproportionate and punitive size of the ‘charge’. To charge £100 in those circumstances is clearly not a reasonable charge for the privilege to park.

In order for the £100 parking charge to be a genuine offer to provide a parking service, then it should be made explicit in a prominent position at the top of the signage (IPC CoP: Schedule 5 – Parking Charges). Equal weight should be given to that offer of a parking service as is given in the notice about parking being permitted for permit holders. As this is not the case the only interpretation of the signage is that the landowner is trying to deter people from parking on that land with an enforceable threat of a punitive charge.

The driver parking in breach of contract, only allows the landowner to claim for genuine pre-estimate of loss. Therefore, PCM LTD must prove the charge to be a genuine pre-estimate of loss. However there is no loss from the contravention due to the location being close to empty with only four cars present (see attached copies). PCM LTD cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely loss from the allegede contravention in order to be enforceable. If there is an initial loss directly caused by a vehicle parked within the unmarked bay in breach of the conditions (e.g. loss of revenue from not having a permit) this loss will be obvious. The initial loss is a fundamental aspect of a parking charge, without it costs incurred from issuing the charge cannot be proven to have been caused by the drivers alleged breach. PCM LTD operational costs, tax deductable office functions, debt collection and other operations cannot flow as a direct consequence of this parking contravention. PCM LTD would have been in the same position had the parking charge notice not been issued, along with the same businesss overheads even if no vehicles breached terms and conditions.

5) Contract with Landowner

PCM LTD does not own the land and are assumed to be merely agents for the owner or legal occupier. In their NTK and in the rejection letter, PCM LTD has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment for the title of the land in question. Within the IPC CoP Part B, paragrapgh 2.1 states the requirement of such an agreement. I request that the IPC check whether PCM LTD have provided a full copy of the actual contemporaneous, signed and dated contract with the landowner/occupier (not just a signed slip of paper saying it exists or someone has witnessed it) and check that it specifically enables this operator to pursue parking charges in their own name as creditor and through the court system. ‘Witness statements’ instead of relevant contract show no proof that the alleged signatory has ever seen the contract or that they are employed by the landowner. Such a statement would not show whether any payment has been made to the operator which would obviously affect ‘loss’ calculations. Furthermore, it would not serve to provide proof that the contract includes the necessary authority required by the IPC CoP to allow the operator to pursue charges in their own name as creditor and to enter into contracts with drivers. I say that any contract is not compliant with the requirements set out in the IPC Code of Practice.

I do not believe that the operator has the necessary legal capacity to enter into a contract with a driver of the vehicle parked in the lay-by or indeed the legal standing to allege a breach of contract. I refer the adjudicator to the recent appeal court decision in the case of the Vehicle Control Services (VCS) v HMRC (EWCA Civ 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 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 considered moving from the landowner in return for the supply of parking services.” In other words, they are not, as the operators assert’s, a contractual term. If they were a contractual term, 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. The appellant asserts 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 asset as set out above.

Moreso, the signage present at the location relied upon to create a contract between the landowner and the driver does not identify PCM LTD as the creditor for any charges that arise out of the contract or damages following a breach of contract. Therefore, PCM LTD are unable to pursue this claim since they have not been identified as a creditor (IPC CoP, Part B, paragraph 1).

6) Business Rates and VAT applicable if the Charges are Contractual Agreements for the Provision of a Service

PCM LTD runs a business the specified location for revenue and profit, and their signage appears to attempt to create a contractual agreement for ‘services’. I put PCM LTD to strict proof that business rates are being paid to the local authority valuation office in respect of this ‘contractual parking service’ business, and that they are paying VAT to HM Revenue and Customs.

PCM LTD’s failure to use consistent language to that of the IPC/IAS, long with inconsistent language within their own literature is at best a reflection of negligent and sloppy practice, and at worst it could be seen as a deliberate attempt to frustrate the appeal process with the IAS. I respectfully ask the IPC assessor to consider my points and photographic evidence and order that this charge be cancelled

Yours Faithfully,

XXXX

Guys_Dad

Well argued.

On the layout front, not bad either, although I would suggest breaking up the large amount of basic text by putting quotations or references in italics

e.g.

I contend the signs in place on this land do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]. All of the points mentioned clearly justify how PCM LTD have failed to fulfil the IPC CoP requirements with regard to signage.

and

I refer the adjudicator to the recent appeal court decision in the case of the Vehicle Control Services (VCS) v HMRC (EWCA Civ 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 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 considered moving from the landowner in return for the supply of parking services.” In other words, they are not, as the operators assert’s, a contractual term. If they were a contractual term, 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. The appellant asserts 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-

Also, when you want the IAS or PCM to do something, either underline it or put it in bold.

PCM LTD runs a business the specified location for revenue and profit, and their signage appears to attempt to create a contractual agreement for ‘services’. I put PCM LTD to strict proof that business rates are being paid to the local authority valuation office in respect of this ‘contractual parking service’ business, and that they are paying VAT to HM Revenue and Customs.


I think they will chase you on the last point, though, as even if PCN are breaking the law as far as VAT payments go, that is a different matter between them and HMRC and is not a matter for you in this case.

But, I would ask for confirmation that the land is registered at the council as business land and that if this is a business contract charge and not a disguised damages case, then do make sure that you let them know that you will be whistleblowing to HMRC.

Dee140157

I would agree about making the paragraphs smaller, as a large chunk of text can make your eyes miss bits.

So eg.
Upon entering the location where the contravention took place, the road had no signs and lines visible from many of the parking bays so no driver can have been expected to have entered into any contract. There was one non-visible sign approximately 2 metres above on a lamp post hidden behind a tree on the other side of the road from where the vehicle was positioned (see attached copies). This sign was completely obstructed should a car park away from it. Within the IPC CoP Schedule 1 – Signage it clearly states on page 25 signage should “Signs must, where practicable, be placed at the entrance to a site. Otherwise the signage within the site must be such that it is obivious to the motorist” and on page 27 [Other Signs (4)] “Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle must be able to see them clearly upon entering the site or parking a vehicle within the site”. A lack of signage on a site is a breach of the IPC CoP requirements stated.

Furthermore, due to the high positioning along with the overall minute size of text used, the signage is barely legible making it difficult to read and understand. On page 26 of IPC CoP it clearly states that “The signs must be readable from far anough away so that drivers can read akk the of the Group A and Group B text without needing to look more than 10 degrees away from the road ahead” and on page 27 “The signs must be at a suitable height – is suggest that no part of the sign which contains relevant text should be over 6’, or under 12”, from the ground level. Such text must be of a size which is easily legible having regard to the location and in any event should not be less than 5mm in height” (see attached copy). However, the signage location was not prominent.

I contend that the signs and any core parking terms PCM LTD are relying upon being too small for any driver to see, read and understand whilst driving or stationary, as the text containing the information is not easily legible as it is WRITTEN ALL IN CAPITAL LETTERS, which for anyone dyslexic can cause major problems. The British Dyslexia association and Gov.uk state that “Use a plain, evenly space sans seif font such as Arial and Comic Sans. Alternatives include Verdana, Tahoma, Century Gothic, Trebuchet. AVOID TEXT IN BLOCK CAPITALS: this is much harder to read”.

Popcorn141

I have finally completed my draft appeal mainly thanks to the help of Coupon-mad, Guys Dad, Dee140157 and the various threads on MSE. Please feel free to add your input to make the appeal stronger.

P.S. I wrote to PCM requesting a VAT invoice last week and they responded with the following:

hxxp://s1369.photobucket.com/user/TSD16/media/VATR1_zps3696fca2.jpg.html
hxxp://s1369.photobucket.com/user/TSD16/media/VATR2_zpsed00fcaf.jpg.html

I have added this information into paragraph 6.

Popcorn141

PCN Number: XXXX
Date PCN Issued: XXXX

Dear Indepent Parking Committee,

I am the registered keeper of vehicle reg: XXXX and I contend that I am not liable for the parking charge and the vehicle was not improperly parked. I wish to appeal against the notice issued by Parking Control Management UK Ltd. (PCM) on the following grounds:

1) Failure to Comply with Statutory Requirements under Paragraph 8 of POFA 2012, Schedule 4 (see file attachments NTK 1 & 2)

There are omissions of the statutory wording required under paragraph 8 of POFA 2012, Schedule 4. PCM has failed to comply with the statutory requirements under Schedule 4 in the NTK. The NTK does not inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full as required on para. 8(2)(b). The NTK does not invite the keeper to pass the Notice on to the driver, as required in para. 8(2)(e). Moreover, the NTK does not state that the keeper would become liable for the charge only if the applicable conditions under this Schedule are met which is not in accordance with para. 8(2)(f). Furthermore, paragraph 8(2)(h) states that the NTK must identify the creditor and specify how and whom the payment or notification to the creditor may be made. The NTK in this matter does not identify the creditor and does not comply with this requirement. In addition, the NTK failed to inform the keeper of the arrangements and contact details for resolution of disputes or complaints to the Information Commissioner (see attached NTK copies).

The NTK from PCM indicates that they are a member of the IPC and abide by the committees’ CoP. The failings identified above of the NTK also breach the IPC CoP page 14, Part C para. 2. Where an Act states that such a Notice ‘must’ include certain prescribed words, any omission renders a document a nullity.

Due to being non-compliant with the IPC CoP and Schedule 4 of the POFA 2012, PCM are not able to establish keeper liability of the vehicle for the alleged parking charge. Therefore, any action against the keeper should be withdrawn.

2) Inadequate and Lack of IPC Compliant Signage (see file attachments Signage 1 & 2, Rejection Letter 1 & 2 and Evidence 1 & 2)

The signage located at the site was not seen, formed no contract with the driver, switched between ‘contractual fee’ and ‘unauthorised parking’ and does not meet the IPC Code of Practice (CoP) guideline requirements. Firstly terms are only imported into a contract if they are clear and prominent that the party ‘must’ have known about it and agreed. The signage present at the location of the alleged contravention does not identify PCM as a creditor for any charges that arise out of the contract or damages following a breach of the contract (see attached copies). Therefore, this cannot form a contract between the driver and landowner or PCM.

Consequently, should a contract be found to exist between the landowner and the driver, PCM not having been indetified as a creditor are unable to pursue this claim as stated on page 10 [Part B: 1(2.1)] and page 27 [Other Signs: (1)] of the IPC CoP. To date, no authority has been provided that establishes that PCM are authorised to pursue this claim on behalf of the landowner, which also does not comply POFA, 2012. When asked for proof of contract between PCM and the landowner PCM were reluctant to comply and stated “This land is private land and is managed and operated by Parking Control Management” (see attached Rejection Letter copies).

Upon entering the location where the contravention took place, the road had no signs and lines visible from many of the parking bays so no driver can have been expected to have entered into any contract. There was one non-visible sign approximately 2 metres above on a lamp post hidden behind a tree on the other side of the road from where the vehicle was positioned (see attached Evidence copies). This sign was completely obstructed should a car park away from it. Within the IPC CoP Schedule 1 – Signage it clearly states on page 25 signage should “Signs must, where practicable, be placed at the entrance to a site. Otherwise the signage within the site must be such that it is obivious to the motorist” and on page 27 [Other Signs (4)] “Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle must be able to see them clearly upon entering the site or parking a vehicle within the site”. A lack of signage on a site is a breach of the IPC CoP requirements stated.

Furthermore, due to the high positioning along with the overall minute size of text used, the signage is barely legible making it difficult to read and understand. On page 26 of IPC CoP it clearly states that “The signs must be readable from far anough away so that drivers can read akk the of the Group A and Group B text without needing to look more than 10 degrees away from the road ahead” and on page 27 “The signs must be at a suitable height – is suggest that no part of the sign which contains relevant text should be over 6’’, or under 12’’, from the ground level. Such text must be of a size which is easily legible having regard to the location and in any event should not be less than 5mm in height” (see attached Signage copies). However, the signage location was not prominent.

I contend that the signs and any core parking terms PCM are relying upon being too small for any driver to see, read and understand whilst driving or stationary, as the text containing the information is not easily legible as it is WRITTEN ALL IN CAPITAL LETTERS, which for anyone dyslexic can cause major problems. The British Dyslexia Association and Gov. UK state that “Use a plain, evenly space sans seif font such as Arial and Comic Sans. Alternatives include Verdana, Tahoma, Century Gothic, Trebuchet. AVOID TEXT IN BLOCK CAPITALS: this is much harder to read”.

In addition the terms are misleading with wording that dresses up the charge as a ‘contractual’ fee, which it is not, (see point a). The fact that the sign states “Restrospective evidence of authority to park will not be accepted”, confirming that the sign is setting out that one group of drivers are ‘authorised’ to park and the other group are not (those without a permit). Therefore, there is no consideration/acceptance flowing from PCM to the second group of drivers to form a contract. If a firm wanted to make an ‘offer to park’ by way of consideration to the second group they should word there signs along the lines of parking is allowed/authorised for everyone (without a permit or out of a bay) at a daily tariff rate of £100. One cannot contract to be allowed to do something the sign states as not ‘allowed/unauthorised’.

Similarly, the IPC CoP as on page 27 [Other Signs (5)] states that signs must “Have clear and unambiguous wording and be designed such as to leave the driver under no doubt that he is entering into a contract with the creditor or committing trespass as the case may be” (see attached Signage copies). The sign fails this requirement as there was no agreement to pay. This is a non-negotiated and unexpected third party ‘charge’ imposed upon legitimate motorists who are not ‘customers’ of PCM and not expecting to read a contract when they park in an unmarked parking bay by. It would seen/accepted by the driver. That it is not the case, the absence of signage and yellow lines to alert a driver to read a sign on a lamp post, which would otherwise be overlooked due to its hidden location clearly invite a driver to believe they can park there without restriction (see attached Evidence copies).

The signage is ambiguous and contradictory. In the Notice to Keeper (NTK) the sum is stated as a contravention for ‘breaching’ the terms and conditions’s yet the sign misleadingly alleges a ‘contractual’ sum (see attached NTK copies). If so, there should be a payment mechanism and a VAT invoice. There is none. This is not a transparent contract and is disguised penalty. Terms must be clear otherwise under the doctrine of contra proferentem the interpretation that favours the consumer applies.

I request the IPC to check the PCM’s evidence and signage map/photos on this point and compare the signs to the IPC Code of Practice requirements. I contend the signs in place on this land do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]. All of the points mentioned clearly justify how PCM have failed to fulfil the IPC CoP requirements with regard to signage.

a) The Charge is Not a Contractual Fee – it is a disguised breach

PCM has attempted to avoid the necessity of having to justify a pre-estimate of loss by stating that this is a contractually agreed fee on their signage. However, on both the NTK and the rejection letter to my appeal PCM states respectively that the charge is for ‘breaching’ the terms and conditions of parking (see attached NTK and Rejection Letter copies).

Additionally, the wording on their sign also states that “unauthorised parking may result in your vehicle being issued with a parking charge notice”. The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be considered, it would have to mean that permission to park without a permit was given providing a fee was paid. Clearly permission to “park in breach” cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.

3) No Contractual Agreement with the Driver

The sign at the location where the car was parked does not create a valid contract between the driver of the vehicle and the landowner whereby the driver agrees to pay £100 consideration for the privilege to park the car (see attached Signage copies). The signage quite clearly states that there is ‘No Unauthorized Parking’ and “Parking is permitted for: vehicles fully displaying a valid parking permit within the windscreen and parked within an area appropriate to that permit” (see attached Signage copies). This statement clearly indicates that there is no valid contract for the driver to enter into, since by definition they are not allowed to park without a permit. If a driver parks on the site without displaying a valid parking permit the driver is not permitted to park and by doing so is acting in breach of the contract for parking.

Therefore, any charges that arise from the wording should be treated as a penalty. To attempt to levy a charge of £100 in those circumstances is nothing more than an attempt to ‘fine’ the driver for parking on private land.The signage goes on to state that “By parking or remaining on the site otherwise than in accordance with the above you, the driver, are agreeing to follow the contractual terms”. Moreover, this involves agreeing to pay £100 consideration.

However, the wording does not suggest that a contract is being entered into by the driver, instead it is worded clearly as a threat that if a driver parks in that location without a valid parking permit then they will be subject to a penalty charge of £100. The wording is clearly intended as a deterrent and therefore any charges that flow from that wording should be treated as penalty irrespective of the attempt in the signage to disguise this as ‘consideration’ for the right to park. This interpretation of the signage is supporting the disproportionate and punitive size of the ‘charge’. To charge £100 in those circumstances is clearly not a reasonable charge for the privilege to park.

In order for the £100 parking charge to be a genuine offer to provide a parking service, then it should be made explicit in a prominent position at the top of the signage (IPC CoP: Schedule 5 – Parking Charges). Equal weight should be given to that offer of a parking service as is given in the notice about parking being permitted for permit holders. As this is not the case the only interpretation of the signage is that the landowner is trying to deter people from parking on that land with an enforceable threat of a punitive charge.

The driver parking in breach of contract, only allows the landowner to claim for a genuine pre-estimate of loss. Therefore, PCM must prove the charge to be a genuine pre-estimate of loss. However, there is no loss from the contravention due to the location being close to empty with only four cars present (see attached Evidence copies). PCM cannot demonstrate any initial quantifiable loss.

The parking charge must be an estimate of likely loss from the alleged contravention in order to be enforceable. If there is an initial loss directly caused by a vehicle parked within the unmarked bay in breach of the conditions (e.g. Loss of revenue from not having a permit) this loss will be obvious. The initial loss is a fundamental aspect of a parking charge, without it costs incurred from issuing the charge cannot be proven to have been caused by the drivers alleged breach. PCM’s operational costs, tax deductible office functions, debt collection and other operations cannot flow as a direct consequence of this parking contravention. PCM would have been in the same position had the parking charge notice not been issued, along with the same business overheads even if no vehicles breached terms and conditions.

4) Contract with Landowner

PCM does not own the land and are assumed to be merely agents for the owner or legal occupier. In their NTK and in the rejection letter, PCM LTD has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment for the title of the land in question. Within the IPC CoP Part B, paragraph 2.1 states the requirement of such an agreement.

I request that the IPC check whether PCM have provided a full copy of the actual contemporaneous, signed and dated contract with the landowner/occupier (not just a signed slip of paper saying it exists or someone has witnessed it) and check that it specifically enables this operator to pursue parking charges in their own name as creditor and through the court system. ‘Witness statements’ instead of relevant contract show no proof that the alleged signatory has ever seen the contract or that they are employed by the landowner. Such a statement would not show whether any payment has been made to the operator which would obviously affect ‘loss’ calculations.

Furthermore, it would not serve to provide proof that the contract includes the necessary authority required by the IPC CoP to allow the operator to pursue charges in their own name as creditor and to enter into contracts with drivers. I say that any contract is not compliant with the requirements set out in the IPC Code of Practice.

I do not believe that the operator has the necessary legal capacity to enter into a contract with a driver of the vehicle parked in the lay-by or indeed the legal standing to allege a breach of contract. I refer the adjudicator to the recent appeal court decision in the case of the Vehicle Control Services (VCS) v HMRC (EWCA Civ 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 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 considered moving from the landowner in return for the supply of parking services”.

In other words, they are not, as the operators assert’s, a contractual term. If they were a contractual term, 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. The appellant asserts 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 asset as set out above.

Moreso, the signage present at the location relied upon to create a contract between the landowner and the driver does not identify PCM as the creditor for any charges that arise out of the contract or damages following a breach of contract. Therefore, PCM is unable to pursue this claim since they have not been identified as a creditor (IPC CoP, Part B, paragraph 1).

5) The Charge is Not a Genuine Pre-Estimate of Loss

The charge of £100 is being sought for an alleged breach of parking terms, namely “parking without a valid permit” consequently I contend, and the IPC Code of Practice states, that a charge for breach must be based on the genuine pre-estimate of loss. The requirement to demonstrate that the charge was based on a genuine pre-estimate applies to this alleged contravention as a driver cannot contract to park in such a way that the sign does not ‘permit’.

Therefore, the charge is not a core price term and is clearly a matter of breach or trespass since the Operator states in their rejection letter (see attached Rejection Letter copies) that 'parking in this area is only permitted for vehicles wholly parked in a marked bay displaying a valid permit'. This is borne out by the large heading, the only offer on the sign 'parking is permitted for'and the only allowed parties are those displaying permits and parked in a marked bay. That sentence communicates clearly that any other parking behaviour is not 'permitted' at all - there is no equivalent sentence permitting them to park. Drivers without a permit or parking outside of an unmarked bay, being subject to a disproportionate 'charge' must therefore be concluded to be either trespassing or in breach. They are certainly not invited and allowed to park and there is no tariff nor payment mechanism provided for non permit holders, so there is no 'consideration' despite that word appearing on PCM's sign. This charge is not a core term for a 'service' and is not a contractual charge at all; it is a disguised penalty.

This contention is supported by the OFT’s view in a document available on the OFT website as oft842.pdf, link here which clearly states early on, “1.19 In our view the basic principles set out here also apply to other analogous default charges in consumer contracts’’:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/284445/oft842.pdf

"Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for 'agreeing to' or 'allowing' a customer to exceed his credit limit is no different from a charge for the customer's 'default' in exceeding his credit limit.) The UTCCRs are concerned with the intention and effects of terms, not just their mechanism”.

My suggestion that this charge is a disguised penalty is further supported by the OFT's extensive guidance on the Unfair Terms in Consumer Contracts Regulations 1999. This is also available on the OFT website as oft311.pdf, link here.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/284426/oft311.pdf

The guidance includes the following advice:

“The Regulations apply a test of fairness to all standard terms (terms that have not been individually negotiated) in contracts used by businesses with consumers, subject to certain exceptions. The main exemption is for terms that set the price or describe the main subject matter of the contract (usually known as 'core terms') provided they are in plain and intelligible language. The Regulations thus apply to what is commonly called 'the small print' of standard form consumer contracts”.

“The Regulations are concerned with the intention and effects of terms, not just their mechanism. If a term has the effect of an unfair penalty, it will be regarded as such, and not as a 'core term'. Therefore a penalty cannot be made fair by transforming it into a provision requiring payment of a fee for exercising a contractual option”.

“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, or which purports to define what the consumer is buying, 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”.

Therefore, according to the OFT, parking - indeed any - contracts specifying high charges for events which would normally be a breach of contract, described spuriously as if they are “core” prices for services delivered would still fall foul of the Regulations and would not be exempt from the test of fairness.

In the event of any ambiguity as to whether a term refers to a contractual charge or to liquidated damages for breach, then the doctrine of contra proferentem applies in favour of the consumer and thus, this charge has no genuine possibility of being viewed as a core term, falls foul of unfair terms regulations and is a penalty clause applied in terrorem.

Moreover, there can be no commercial justification for such a charge in a situation where the predominant purpose is to deter (as here in this car park for permit holders only) and the parties are not of equal bargaining power. Any reference to the ParkingEye v Beavis and Wardley case is unsupported by any case law and in any case, the Beavis judgment is now set for the Court of Appeal on the question of a penalty being justified. This PCM case is not comparable anyway because PCM are not the principal (unlike ParkingEye in that case where the Judge found they were because they were paying £1000 per week to penalise people at that site).

The IPC must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can be neither commercially justified or proved to be a genuine pre-estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.

6) Business Rates and VAT applicable if the Charges are Contractual Agreements for the Provision of a Service (see attached VAT copies 1 & 2)

PCM has failed to include VAT in their charging invoice which further demonstrates that this is not a genuine contractual fee or tariff, but a penalty clause (see attached VAT copies). When PCM were contacted regarding the invoice, PCM simply issued a copy of the original PCN charge within a letter. Therefore, they have failed to answer my request for an invoice. PCM runs a business the specified location for revenue and profit, and their signage appears to attempt to create a contractual agreement for ‘services’.

I request confirmation from PCM that the land is registered at the council as business land and if the PCN in question is a business contract charge not a disguised damages case. Otherwise, I will be making a disclosure in the public interest to HM Revenue and Customs.

PCM’s failure to use consistent language to that of the IPC/IAS, long with inconsistent language within their own literature is at best a reflection of negligent and sloppy practice, and at worst, it could be seen as a deliberate attempt to frustrate the appeal process with the IAS. PCM cannot have a contract with the driver when they have to satisfy specific conditions, which in this case they did not from the points and evidence raised above. I respectfully ask the IPC assessor to consider my points and photographic evidence and order that this charge be cancelled.

Yours Faithfully,

XXXX