POPLA Draft - Peel Centre - Newbie Thread Read!

sparkyfrodo

Hi Everyone,

Firstly, retrospective thanks to everyone that has posted about PCNs and POPLA appeals previously. This information has been invaluable.

Onto my situation. In March, I parked at the Peel Centre. The machine is tedious to say the least, however I persevered and received my ticket, believing I had entered the correct registration. I displayed the ticket adequately, and left well before the expiry time on the ticket.

A few weeks later, I received a PCN through the post, suggesting I had failed to pay. Fortuitously enough, I had only minutes before thrown the ticket into the bin, so was able to retrieve it. I subsequently sent a (very nice) letter to Excel, enclosing a copy of the ticket, apologising for the inconvenience.

Now that I have taken the time to read up on private parking, I realise I made two small mistakes with this letter; first (through my language), admitting I was the driver. Second, I suggested that I had perhaps entered my old car registration number. As it turns out, this wasn't true - according to their letter I entered a single "1". Looking back at the ticket, I can see a a capital "I", though it is not clear from the ticket's layout that this is where the registration number is supposed to appear.

My appeal was rejected, on that basis that I broke the terms and conditions by not entering a valid registration, therefore I did not display a "valid" ticket, ergo I was still liable etc. It invited me to apply to POPLA, which I intended to do, but left by the wayside. I went over the 30 days' and received another letter demanding payment. Having found out that I had missed the deadline, I wrote
back a (admittedly, slightly sassy) letter, addressed to their Managing Director, suggesting they were being ridiculous to pursue me after I had provided a copy of the ticket I had purchased, and that they could never hope to prove any intent to avoid the parking fee on my behalf. I suggested they do the right thing and drop it. I also mentioned that I would have applied under POPLA had they made me aware of the deadline.

They wrote back, refusing to drop the charge notice, but offering me the documentation to apply under POPLA, seemingly under the condition that if POPLA found in their favour, I would agree to pay the £100. I wrote back simply asking to be supplied the documentation (though not indicating I would pay the charge if POPLA did not find in my favour).

It is NOW that I have taken the time to read up online (which I wish I had done before the whole mess started - my rose-tinted view of the world led me to believe that having the actual ticket in my possession would be enough for any reasonable company to drop it). How naive I was!

I have just finished the first draft of my appeal and would really appreciate if anyone could offer their input on what I have written. Point #5 is a variation on the inadequate signage point and I don't know whether it is worth leaving in or not. Special thanks to stargazer7 - it was that thread that I based the majority of what I have written on.

Thanks in advance!

PS: I felt like there should be a point about there being no intent on my part to avoid the charge, however I didn't see this in any other appeals. It is mentioned elsewhere, however.

______________________________
Dear POPLA adjudicator,

I am writing to appeal against a parking charge levied by Excel Parking Services Ltd on 16/03/2014. I am the registered keeper of the vehicle concerned.

The grounds for my appeal are as follows:

1. Unfair terms
2. No genuine pre-estimate of loss.
3. Legal capacity to issue parking charges
4. ANPR section of the BPA Code of Practice/Use of ANPR & Data Collection
5. Misleading signage
6. No intent to



1) UNFAIR TERMS

The charge of £100 imposed by Excel Parking Services Ltd constitutes an unfair term as it is disproportionate with respect to the alleged infringement. Excel Parking Services Ltd claim a breach of contract between the driver and their company – however the charge that is being applied for this alleged breach contravenes The Unfair Terms in Consumer Contract Regulations 1999, in particular:

Schedule 2: Indicative and non-exhaustive list of terms which may be regards 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.”

Also, 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 contains the following paragraph:

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.”

I would further argue that, as the driver purchased and displayed a ticket valid for significantly longer than the period for which the car was present, Excel Parking Services Ltd have suffered no loss, and have in fact received payment for parking in excess of the standard fees levied for parking. Please see attached scan image of ticket purchased, and a photograph reconstruction of how the ticket was displayed (showing that it could be clearly inspected).

2) No genuine pre-estimate of loss

The charge of £100 is punitive and unreasonable, contravening the British Parking Association's Code of Practice section 19.6. I further contend that it is not based upon a genuine pre-estimate of loss as required by section 19.5 of the Code. If Excel Parking Services Ltd are attempting to enforce the charge under this section, they must therefore be required to validate this argument 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.

Furthermore, operators cannot lawfully include their day-to-day running costs in any 'loss' claimed, as found in the case of Vehicle Control Services Ltd vs Mr R Ibbotson (16th May 2012).

It is my contention that a penalty charge of £100 cannot be construed as a reasonable pre-estimate of loss, whether for brech of contract or civil trespass. This contravenes both the BPA's Code of Practice and the Unfair Terms in Consumer Contract Regulations 1999 as stated above, and therefore must be viewed as a punitive and hence unlawful charge. I would again draw attention to the fact that Excel Parking Services Ltd were paid for their “services” through the purchase and display of a ticket covering significantly longer than the time present on the premises, and have therefore suffered no “loss”.

3) Legal Capacity to issue parking charges

Excel Parking Services Ltd have no proprietary interest in the land concerned, and therefore are required to prove their authority to pursue outstanding parking charges by providing a copy of the contract with the landowner.

I would also draw attention to the practice employed by some parking companies of providing “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 is even an employee of the landowner. If such a witness statement is submitted, I require that is is accompanied by a letter, on landowner's headed stationary, and signed by a director or equivalent of the landowner, confirming that the signatory is authorised to act on behalf of the landowner, has read the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company.

4) ANPR section of the BPA Code of Practice/Use of ANPR and data collection

I also contend that Excel have failed to show me any evidence that the cameras used at this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR). I require POPLA to consider that particular section of the Code in its entirety, and decide whether Excel has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.

5) Misleading Signage

I do not dispute that the Peel Centre Car Park is signed as a “Pay & Display” facility. I would contest that the layman's understanding of a “Pay and Display” Car Park falls exactly in line with that of the Oxford English Dictionary:

“A parking system in which a motorist buys a temporary permit from a coin-operated machine and displays it in the window of the vehicle:”

It is not unreasonable for the driver to extrapolate that by both paying for, and displaying a ticket, that they would have done enough to meet the obligations of such a facility. I further argue that, by enforcing their “Pay & Display” car park through ANPR systems (which take no account of the “display” element of the car park operation), the concept of their facility being a “Pay & Display” car park is entirely misleading and confusing to drivers utilising the facility. I require Excel Parking Services Ltd to therefore prove that the Peel Centre Car Park is predominantly enforced through the display of tickets on driver dashboards, inspected and verified by on-site representatives to thereby justify its being signed as a “Pay & Display” Car Park. Please see attached photograph, with main signage clearly labelling the facility as “Pay & Display”.

I respectfully request that these points are taken into consideration and ask that the parking charge be cancelled forthwith.

Yours Faithfully,

Wastenotwantnot

These companies now being a hot topic because of their role with hospitals I attach below my recent exchange with the DVLA without whose complicity, many such operators could not obtain the car keepers name & address upon which to serve their invoices.

I was recently served an invoice by post for an inadvertent 21min overstay for £90. This would be discounted to £50 for an early settlement. They are legally able to obtain your vehicle keeper details from DVLA. They are NOT the police or an Authority and in my view this constitutes a breach of my data protection and rights. I wrote to DVLA thus:-

[FONT=ArialMT, sans-serif]My concern is that you are willing to be complicit in what is almost a scam. If you read up the situation, no-one can issue you a parking fine after inviting you to park freely UNLESS they have a proper contract with you. They don't. They are assuming that you will read all their small print. Even if they were to erect a huge explanatory banner, it is by no means certain that the law would agree that you have entered into a binding contact with the operator. Fines of £90 (even when discounted to £50 for immediate payment), for a period of overstay less that an hour are not proportionate or reasonable. They do not reflect any losses they might have incurred and as such contravene your agreements with them to observe fair-play. I ask you now to desist from releasing owners details to these charlatan car park operators.
[/FONT]
[FONT=ArialMT, sans-serif]
Sincerely,[/FONT]
Copies to BBC & Newspapers
[FONT=ArialMT, sans-serif][/FONT]

BTW - I got my "invoice" rescinded by writing to the land-owner, the retailers (with copies of receipts) and begging for their help. They know! I also lobbied my MP. This is a despicable practice laced with deception & opportunism. The DVLA should not be complicit in it. All useful info. & tactics obtained from this site. Thank you.

Redx

@ sparkyfrodo

best bet is use the one listed and linked by post #3 of the newbies thread, adding a bullet point numbered summary to it , which was only updated a week ago

sparkyfrodo

Thanks Redx. I think that's what I did - I followed through to the one specifically about the Peel Centre and adapted it. If point #5 isn't going to help then I'll remove it.

Redx

your appeal looks nothing like that one linked in the newbies thread

my point is that coupon-mad rewrote the peel centre appeal a week ago so there is nothing to adapt, just add a numbered bullet point list like I said , then maybe alter the opening paragraph to personalise it

99% of the appeal was done a week ago by CM, so no point changing any of it

your point 5) is pointless, as this peel centre car park (and many others too) are enforced through anpr plus ticket machines, what you want their operatives to do is irrelevant

you seem to be trying to re-invent the wheel, but the wheel coupon-mad made is perfect, and recent , so you are doing mucho work for no reward

sparkyfrodo

Right, sorry, found it - must have been a 400 windows open error. New draft inbound.

Redx

better check the expiry on the popla code too, having re-read your opening post, especially as this happened months ago

Excel have also indicated to watchdog etc that they check for typos and errors on this car park in their systems and so I am surprised that they are stupid enough to be pursuing it, although popla wont rule in your favour based on a valid and paid for ticket with incorrect details on it (ie:- mitigation - but a judge probably would)

hence all the other legal points you appeal on, most likely you will win on not a gpeol

sparkyfrodo

Already checked the expiry - valid until September 8th.

Some clarifications if you don't mind:

The ANPR argument, should I still be including this, or is it moot because we've already established through previous correspondence that (because I entered a bad reg), it was never going to match up even if the system worked 100% of the time?

• Although they won't rule in my favour purely on the fact that I have an incorrect ticket, do I still include the evidence for it?

Thanks again for your help.

Dee140157

To be honest although we always throw ANPR in it. It tends only to come in when there is a debate about the amount of time driving around car park and whether you were parked for an hour or in the car park for an hour (quite different things). So if you are unsure you can omit, but it doesn't harm to leave it in either.

And yes do add in the that there was no loss to the bit on GPEOL,as you had purchased a ticket and therefore there was no loss to the PPC. So enclose a copy of ticket as evidence.

A recent POPLA decision said this:

For such losses to be recoverable, the must Operator show an initial loss which needed to be pursued. This is simple where there was, for example, a failure to pay a tariff to park. However, in cases such as the present one an initial loss is not demonstrably clear and the Operator must set it out in their pre-estimate of loss. Without an initial loss, the costs incurred by the issue of the parking charge notice cannot be considered to have been caused by the driver’s contravention of the Terms of parking. This is because the Operator would have been in the same position had the parking charge not been issued.

This may already be in the appeal you plan to use which has won, but if not you may want to add it in!

Redx

agree with last post, leave stuff in, and add what you like , its all grist for the mill , even if you win on not a gpeol or no contract etc

they rely on anpr, so it stays in regardless of the stupid hoops they make you jump through

also, if you add the details about the ticket, they cannot state that its a template appeal , due to you personalising it

sparkyfrodo

Awesome, thanks. I think we're nearly there.

Dee140157 - where can I get the name of the POPLA officer that made that decision to include?

EDIT: I'm now worried about the template aspect so am changing the wording a little.