IAS second stage appeal Parking enforcement brighton

Edna_Basher

It's to your advantage that the Final Demand dated 30th July 2014 states that the charge has arisen from an alleged breach of the parking regulations displayed on the site.

This scuppers the PPC's claim that this charge is an agreed contractual sum; consequently this brings into play the defence that this charge does not represent a Genuine Pre-Estimate of Loss (GPEOL). I don't think the IAS will be able to wriggle their way out of denying this appeal point.

You can also raise a complaint that by using the term "parking regulations" in its correspondence to you, this PPC has sought to mislead you into believing that it has statutory powers.

Dee140157

But you do need to get a move on or you will be out of time!

romantix

hi all thanks for all your messages - im definitely not expecting anyone to write anything for me have just been away in London with work so knew this would always be tight after only picking it up from returning from overseas. im just appreciative to have all your advice and am in the process of editing up a draft now. I will post but dont expect much feedback as will be late tonight and need to send it first thing tomorrow. will add in all your points.

You do not mention when the even took place. As this is a final demand it may well be out timescale for POFA 12 liability. What date did the event occur on and how many days between the event and you receiving this letter? I assume there was no other letter in between. This is important as it may be your slam dunk point.

Dee it happened on 04.06.14 - does that impact POFA 12 liability? i am not familiar with how long this is?

Dee140157

It does indeed. If this final demand was the first letter you actually received, as opposed to a reminder, then you need to state this clearly in your appeal.

A NTK which is issued as a result of a windscreen ticket, should be received (not sent) within 29 & 56 days of the event. This was not sent until 30/07/14, exactly 56 days after original ticket. Therefore it is clearly not complaint with POFA 12 and as such there is no liability to keeper. See points 5 & 6 of the above pofa12.

Provided you have only ever appealed as keeper, this should be your first and strongest point.

It all hinges on whether this was the first you heard of it as keeper.

Obviously you need to pick out all other flaws, but could be your strongest winning point.

romantix

how about this for that point - is it clear enough?


1) Failure to Comply with Statutory Requirements under Paragraph 8 of POFA 2012, Schedule 5 and 6 (see file attachments NTK 1)

There is a failure in the receipt of the NTK as required under paragraph 8 of POFA 2012, sub-paragraph 5 and 6. PE has failed to comply with the statutory requirements under paragraph 8 of POFA 2012, sub-paragraph 5 and 6 whereby the first and only NTK was not sent until 30/07/14 by PE as per the dated and attached NTK letter (NTK 1), being sent exactly 56 days after the original alleged breach on 04/06/14. Thus is not in compliance with schedule 5 or 6 whereby a notice sent by post is to be presumed to have been delivered, and so given for the purposes of sub-paragraph 4 on the second working day after the day in which it was posted. As the NTK was only sent on the 30/07/14, 56 days after the alleged breach it could not have been “given” within the specified period of 56 days as stipulated in sub-paragraph 4 as would have been expected to of been delivered on the the second working day after being sent, this being Thursday 31st July 2014 and 57days after the alleged breach. As this NTK was the only NTK given, it is therefore clearly not complaint with POFA 12 and as such there is no liability to keeper.

Dee140157

Only another 10 points to go...

romantix

if anyone is up late or early tomorrow and could have a look over, would be much appreciated. thanks for all your help.

(PART1)

Dear Independent 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 Enforcement ltd. (PE) on the following grounds:
1) Failure to Comply with Statutory Requirements under Paragraph 8 of POFA 2012, Schedule 5, 6, 2 and 7 (see file attachments NTK)

There is a failure in the receipt of the NTK as required under paragraph 8 of POFA 2012, sub-paragraph 5 and 6. PE has failed to comply with the statutory requirements under paragraph 8 of POFA 2012, sub-paragraph 5 and 6 whereby the first and only NTK was not sent until 30/07/14 by PE as per the dated and attached NTK letter (NTK), being sent exactly 56 days after the original alleged breach on 04/06/14. Thus is not in compliance with sub-paragraph 5 or 6 whereby a notice sent by post is to be presumed to have been delivered, and so given for the purposes of sub-paragraph 4 on the second working day after the day in which it was posted. As the NTK was only sent on the 30/07/14, 56 days after the alleged breach it could not have been “given” within the specified period of 56 days as stipulated in sub-paragraph 4 (b) as would have been expected to of been delivered on the second working day after being sent, this being Thursday 31st July 2014 and 57days after the alleged breach. As this NTK was the only NTK given, it is therefore clearly not complaint with POFA 12 and as such there is no liability to keeper.

There are omissions of the statutory wording required under paragraph 8 of POFA 2012, sub-paragraph 2. PE has failed to comply with the statutory requirements under sub-paragraph 2 in the NTK. The NTK does not invite the keeper to pass the Notice on to the driver, as required in sub-para. (2)(e), nor does it make acknowledgment that the creditor does not know the name or address of the driver which is also not in accordance with para. 8(2)(e).
Furthermore, paragraph 8(2)(f) states that the creditor must warn the keeper that they have a 28day period after which the NTK was given if the unpaid parking charges have not been paid in full and the creditor does not know the name or address of the driver, the creditor will only have the right to recover from the keeper so much of that amount as remains unpaid providing it meets with the conditions under this schedule. In this instance, these conditions are not met as a period of 28days are not given but instead 14days within the NTK. Additionally, as outlined by sub.para. (8), the creditor does not inform the keeper in the NTK of any arrangements for the resolution of disputes or complaints as defined in sub-para. (8).
None of the above is in accordance with paragraph 8(2) and as such there is no liability to keeper.
Additionally to this, the NTK when given was not accompanied by any evidence prescribed under paragraph 10 of paragraph 8 sub-para. (7).
The NTK does not advise that PE are a member of IPC, and could therefore be assumed a rogue private contractor. However, PE’s response to the initial appeal dated 08/08/14 (attached) does indicate that they are a member of the IPC and therefore 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 2, 4, 5, 6 and 7 of the POFA 2012, PE 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, Rejection Letter 1 and Evidence 1)

The signage located at the site was not seen, formed no contract with the driver, did not display itself as a member of IPC and regarding height of letting 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 lack of signage present at the entrance to the location of the alleged contravention which was not seen nor clearly by marked by PE has meant. therefore, that between the driver, landowner and PE that a contract could not be formed.

Consequently, should a contract be found to exist between the landowner and the driver, PE not having been identified itself as a creditor upon entry to the location 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 PE 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 PE and the landowner PE were reluctant to comply and stated the landowner has contracted Parking Enforcement to provide parking control services (see attached Rejection Letter copies).

Upon entering the location where the alleged breach took place, the road had no signs upon entering it nor any visible parking bay lines so no driver can have been expected to have entered into any contract. There was one non-visible sign approximately 1.5 metres high attached to a garage wall and another two signs 2 feet from the ground on a wall obscured by ivy or due to its height and positioning fully obscured by other parked cars (see attached Evidence copies). The garage sign offered no clarity to the area in which it was referring to being controlled as there were not signs at the entrance and no parking bay lines, and the sign covered by ivy was oobstructed from view by ivy growing around it. Within the IPC CoP Schedule 1 – Signage it clearly states on page 25 re signage: “Signs must, where practicable, be placed at the entrance to a site. Otherwise the signage within the site must be such that it is obvious 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 lack of signage upon entering the site and 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 enough 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). Additionally, the signage location was not prominent and was obscured from view.

I contend that the signs and any core parking terms PE are relying upon being too small for any driver to see, read and understand whilst driving or stationary, as the text containing the information pertaining to entering into a contract 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 “Retrospective 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 PE 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’. In addition to this distinction between group 1 and 2, a valid permit was owned by the driver (evidence attached) and a contract initiated with the landowner through the tenancy agreement at 20 St. Aubyns property.

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 PE and not expecting to read a contract when they park in an unmarked parking bay bay it would be 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 the side of a garage wall and signs obscured by another car and ivy, due to its hidden location, clearly invites a driver to believe they can park there without restriction (see attached evidence).

The signage is ambiguous and contradictory. In the Notice to Keeper (NTK) the sum is stated as a contravention for ‘breaching’ the terms and condition’s yet the sign misleadingly alleges a ‘contractual’ sum (see attached NTK). If so, there should be a payment mechanism and a VAT invoice. There is none. This is not a transparent contract and is a 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 evidence signage 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 PE 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

PE 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 PE 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 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 “Parking is permitted for: vehicles fully displaying a valid parking permit within the windscreen and parked fully within the confines of a marked bay” (see attached Signage copies). In contradiction to this signage, with no marked parking bays a driver would be immediately unable to agree to any form of contract based on this wording as there are no parking bay lines to contractually agree to. Additionally, this relinquishes any form of contract upon the driver if there are no marked parking bays that they are parked within and infers directly that bays without parking lines are therefore not a part of the contractual agreement between the driver and landowner, nor controlled or enforceable by PE.
Additionally, 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, PE 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 three cars present (see attached Evidence copies). PE 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. PE’s operational costs, tax deductible office functions, debt collection and other operations cannot flow as a direct consequence of this parking contravention. PE 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 thereby contradicting their claim that “the service parking enforcement provides to the landowner is essentially free”.

romantix

PART2

4) Contract with Landowner

PE 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, PE has not provided any evidence stating 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 PE 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 an unmarked bay 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.

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 clearly displayed 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’. Equally with access and ownership of a valid permit regardless of it being clearly displayed omits the claim of any loss to the landowner when the permit had already been purchased and agreed usage.

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. 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, 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’’.

"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.

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 PE case is not comparable anyway because PE 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 nor 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

PE 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. PE runs a business at the specified location for revenue and profit, and their signage appears to attempt to create a contractual agreement for ‘services’.

I request confirmation from PE 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.

PE’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

Dee140157

Cutting it fine, but you have salient points (1 & 2) so get sent off and let us know what happens. Fingers crossed.

I suspect points 3-6 are superfluous.


On further reading, maybe point 3 is ok too. However aa we know landowner authority, and no GPEOL does not work unless the old signs, and vat is not a winning point either it is up to you whether you leave in or out.

romantix

Thanks Dee - I will get sent today. Can you clarify firstly for me what you mean by:

On further reading, maybe point 3 is ok too. However aa we know landowner authority, and no GPEOL does not work unless the old signs, and vat is not a winning point either it is up to you whether you leave in or out.

As alleged breach is used in the NTK does this not mean that they contradict themselves and actually do have a point for GPEOL ?

It's to your advantage that the Final Demand dated 30th July 2014 states that the charge has arisen from an alleged breach of the parking regulations displayed on the site.

This scuppers the PPC's claim that this charge is an agreed contractual sum; consequently this brings into play the defence that this charge does not represent a Genuine Pre-Estimate of Loss (GPEOL). I don't think the IAS will be able to wriggle their way out of denying this appeal point.