Parking Care

bod1467

Simon1212 wrote: »

so I would assume they are talking nonsense now.

It's a private parking company ... they rarely talk anything BUT nonsense.

Simon1212

My first POPLA attempt....Guidance appreciated.




Dear POPLA Assessor,

I am the registered keeper of XX XXX and I wish to appeal the decision reached by Care Parking on PCN XXXXX





POPLA Verification Code XXXXXX

1. The Charge is not a genuine pre-estimate of loss
2. Poor signage - no contract with driver
3. Lack of standing/authority from landowner
4. Unreasonable/Unfair Terms
5. The registered keeper and driver were both Metrolink passengers.






1. The Charge is not a genuine pre-estimate of loss.

In their rejection letter, Care Parking appear to be asserting that their charge is a contractually agreed sum, I refute this entirely.

If this charge was a contractually agreed fee the sign would been worded to offer various durations of parking at various costs to non-customers and a payment mechanism would have been provided on-site. In addition a VAT invoice would have been provided. I have no evidence that this business operation on this car park has been registered for business rates and a VAT invoice has not been supplied.

This is a free customer only car park, there is no mechanism for non-customers to pay for parking and in fact parking other than by customers is specifically disallowed. Clearly permission to park ‘in breach’ cannot be granted, and so I contend the parking charge cannot be a contractual price but is in fact a sum sought as damages for breach.

Their sign clearly states the charge is for “Contravention of parking restriction” i.e. breach of terms, so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park was not even half full and there was no loss of potential income in a free car park.

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.










2. Poor signage - no contract with driver.

As you can see from the photo provided the only sign on entrance to the car park is the sign which displays in rather large black letters on a white background at driver level “Free Parking For Metrolink Passengers” (the driver and the registered keeper both were please, find enclosed copies of the tram tickets for that evening). There are no terms and conditions visibly clear for any driver entering into the car park to agree to.


The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. The signs that are placed throughout the car park are of a light lilac wording on a white background, and are hidden behind poorly maintained shrubs. When the driver and I arrived in the car park at 18:50 it was dark and no signs were clearly visible and now I have re visited the site to take pictures the words are unreadable especially when a light is shone on them. I put Care Parking to strict proof otherwise. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. Therefore I find there is no contract with the driver.

3. Lack of standing/authority from landowner.

Care Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Care Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Care Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Care Parking are entitled to pursue these charges in their own right.

I require Care Parking to provide a full copy of the contemporaneous, signed & dated contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority. The onus is on Care Parking to prove otherwise as this was stated in the appeal and they have yet to provide evidence.







4. Unreasonable/Unfair Terms.

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

An badly lit sign of terms placed in a position that is hidden by poorly maintained overgrowth, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(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." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to rely on badly lit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.


In summary, Care Parking are attempting to enforce a punitive charge for an alleged infringement, thinly disguised as a contractual charge, which breaches the Unfair Terms in Consumer Contracts Regulations, which they have no authority to issue in the first instance.


Furthermore to provide clear transparent black and white signage at the entrance to the car park and have unreadable terms and conditions in the car park is only a money making exercise to dupe sensible Metrolink passengers who do not drink and drive and feel that they have a park and ride facility is wrong on every level. To subversively take away the right to park outside of tram hours is an underhand ploy to bully people into parting with money.











5. The registered keeper and the driver were both using the tram. I have supplied copies of the tickets that were used on the evening before the invoice was issued at 03:00. These can then be cross referenced with copies of the registered keeper’s bank statements to show purchase date and time. The rejection letter clearly states that we were observed getting on a local bus and the operator has also made a statement to this effect. It is worrying that Care Parking employ people of this calibre.





Finally it does state in the rejection letter that as I appealed outside the 14 day discounted period the full amount is now due. The invoice was issued at 03:00 04/10/2014 and I have a letter from Care Parking acknowledging my appeal dated 08/10/2014.





As it is completely clear that Care parking are shambolic and totally untrustworthy
I respectfully request that my appeal is upheld and the charge is dismissed.

Simon1212

bod1467 wrote: »

It's a private parking company ... they rarely talk anything BUT nonsense.

I've had another go...


Dear POPLA Assessor,

I am the registered keeper of xxxx and I wish to appeal the decision reached by Care Parking on PCN xxxxx
POPLA Verification Code xxxx


1. The Charge is not a genuine pre-estimate of loss
2. Poor signage - no contract with driver
3. Lack of standing/authority from landowner
4. Unreasonable/Unfair Terms
5. The registered keeper and driver were both Metrolink passengers.
6. Failure to comply with the Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013

1. The Charge is not a genuine pre-estimate of loss.

In their rejection letter, Care Parking appear to be asserting that their charge is a contractually agreed sum, I refute this entirely.

If this charge was a contractually agreed fee the sign would been worded to offer various durations of parking at various costs to non-customers and a payment mechanism would have been provided on-site. In addition a VAT invoice would have been provided. I have no evidence that this business operation on this car park has been registered for business rates and a VAT invoice has not been supplied.

This is a free customer only car park, there is no mechanism for non-customers to pay for parking and in fact parking other than by customers is specifically disallowed. Clearly permission to park ‘in breach’ cannot be granted, and so I contend the parking charge cannot be a contractual price but is in fact a sum sought as damages for breach.

Their sign clearly states the charge is for “Contravention of parking restriction” i.e. breach of terms, so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park was not even half full and there was no loss of potential income in a free car park.

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

2. Poor signage - no contract with driver.

As you can see from the photo provided the only sign on entrance to the car park is the sign which displays in rather large black letters on a white background at driver level “Free Parking For Metrolink Passengers” (the driver and the registered keeper both were please, find enclosed copies of the tram tickets for that evening). There are no terms and conditions visibly clear for any driver entering into the car park to agree to.
The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. The signs that are placed throughout the car park are of a light lilac wording on a white background, and are hidden behind poorly maintained shrubs. When the driver and I arrived in the car park at 18:50 it was dark and no signs were clearly visible and now I have re visited the site to take pictures the words are unreadable especially when a light is shone on them. I put Care Parking to strict proof otherwise. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. Therefore I find there is no contract with the driver.

3. Lack of standing/authority from landowner.

Care Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Care Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Care Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Care Parking are entitled to pursue these charges in their own right.

I require Care Parking to provide a full copy of the contemporaneous, signed & dated contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority. The onus is on Care Parking to prove otherwise as this is stated in the appeal and they have yet to provide evidence.
4. Unreasonable/Unfair Terms.

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

An badly lit sign of terms placed in a position that is hidden by poorly maintained overgrowth, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(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." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to rely on badly lit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.


In summary, Care Parking are attempting to enforce a punitive charge for an alleged infringement, thinly disguised as a contractual charge, which breaches the Unfair Terms in Consumer Contracts Regulations, which they have no authority to issue in the first instance.
Furthermore to provide clear transparent black and white signage at the entrance to the car park and have unreadable terms and conditions in the car park is only a money making exercise to dupe sensible Metrolink passengers who do not drink and drive and feel that they have a park and ride facility is wrong on every level. To subversively take away the right to park outside of tram hours is an underhand ploy to bully people into parting with money.
5. The registered keeper and the driver were both using the tram. I have supplied copies of the tickets that were used on the evening before the invoice was issued at 03:00. These can then be cross referenced with copies of the registered keeper’s bank statements to show purchase date and time. The rejection letter clearly states that we were observed getting on a local bus and the operator has also made a statement to this effect. It is worrying that Care Parking employ people of this calibre.
6. Failure to comply with the Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013

It is the will of Parliament, following the recent EU Directives on Consumer Contracts, that almost all UK consumer contracts are now unified in terms of what is required by way of information before the contract is concluded. Also contracts must be 'expressly agreed' so a contract based merely on implied consent from a sign, fails the new statutory regulations:

These Regulations apply to all UK consumer contracts from June 2014. This is a service contract* offered by written terms in print on a sign which is a means of distance communication (i.e. not a face-to-face contract in the simultaneous physical presence of the trader and the consumer).

In the UK Regulations:
* “service contract” means a contract, other than a sales contract, under which a trader supplies or agrees to supply a service to a consumer and the consumer pays or agrees to pay the price.''

From the EU Guidance behind the Directive upon which the UK Law is based:

''Service contracts...should be included in the scope of this Directive, as well as contracts related to...the rental of accommodation for non-residential purposes.
For example, renting a parking space...is subject to the Directive. ''

This contract certainly purports to offer the 'rental' of/use of a parking space:

RENT - 1. a. Payment, usually of an amount fixed by contract, made by a tenant at specified intervals in return for the right to occupy or use the property of another. b. A similar payment made for the use of a facility, equipment, or service provided by another.
Part 4 of these Regulations has provisions concerning protection from unsolicited sales and additional charges which have not been expressly agreed in advance (this was an unsolicited ‘service’ not expressly agreed at all, so this is a breach of the Regulations).
Regulation 39 introduces a new provision into the Consumer Protection from Unfair Trading Regulations 2008 which provides that a consumer is not required to pay for the unsolicited supply of products (as happened here – the NTK is an unsolicited invoice).
Regulation 40 provides that a consumer is not required to make payments in addition to those agreed for the trader’s main obligation, unless the consumer gave express consent before conclusion of the contract (no payments were expressly agreed at all).

Information breaches of these Regulations:
This Operator has failed to serve in a durable medium, ANY information as defined in these Regulations for Distance Contracts (i.e. not face-to-face) as set out in Article 13:
Information to be provided before making a distance contract
''13.—(1) Before the consumer is bound by a distance contract, the trader — (a) must give or make available to the consumer the information listed in Sch. 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used, and
(b) if a right to cancel exists, must give or make available to the consumer a cancellation form as set out in part B of Schedule 3.
(2) In so far as the information is provided on a durable medium, it must be legible.
(3) The information referred to in paragraphs (l), (m) and (n) of Schedule 2 may be provided by means of the model instructions on cancellation set out in part A of Sch.3;
(4) Where a distance contract is concluded through a means of distance communication which allows limited space or time to display the information—
(a) the information listed in paragraphs (a), (b), (f), (g), (h), (l) and (s) of Schedule 2 must be
provided on that means of communication in accordance with paragraphs (1) and (2), but (b) the other information required by paragraph (1) may be provided in another appropriate way.
(5) If the trader has not complied with paragraph (1) in respect off paragraph (g), (h) or (m) of Schedule 2, the consumer is not to bear the charges or costs referred to in those paragraphs.
(6) Any information that the trader gives the consumer as required by this regulation is to be treated as included as a term of the contract.
(7) A change to any of that information, made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.''
Everything that is required by this statute has been omitted, including no information given about the right to withdraw. There is no exemption from this even for distance contracts with limited space or time, so in my first appeal I have already served this operator with my Notice of cancellation which they have acknowledged receipt of, by virtue of their reply. Even if this is not considered to be a 'distance contract' the Regulations set out that all Consumer Contracts (except 'exempt' ones which parking contracts are not) require certain information including the geographical address and phone number of the trader and the geographical address and phone number of the principal, for complaints, where a trader is an agent. This statutory information was missing and it was not served in a durable medium beforehand, so the contract breaches the above statutory regulations and also breaches the POFA 2012 in terms of paragraph 8(2)(g) - ''inform the keeper of...the arrangements for the resolution of disputes or complaints that are available''. In view of these new regulations, the 'arrangement for resolution of complaints' is no longer just details of the Operator's own appeals procedure and POPLA. A contract from a trader who is an agent of a landowner (as here) is now specifically required to show the arrangements and geographical address for complaints to the landowner client, too.
Finally it does state in the rejection letter that as I appealed outside the 14 day discounted period the full amount is now due. The invoice was issued at 03:00 04/10/2014 and I have a letter from Care Parking acknowledging my appeal dated 08/10/2014.
As it is completely clear that Care parking are shambolic and totally untrustworthy
I respectfully request that my appeal is upheld and the charge is dismissed.

Simon1212

Coupon-mad wrote: »

Did you appeal as driver or keeper?

Find a POPLA appeal example from post #3 of the NEWBIES thread and proof read/adapt it to suit.

Good morning CM. Is there any chance you could look at #14 in this thread to see if I am in the correct area for a POPLA response. Many thanks.

Coupon-mad

It looks like you have done your homework, a very good example of a POPLA appeal. Just make sure there is a gap between points 4, 5 and 6 as above they have no gap. When you submit this online to POPLA the acknowledgement system will show all the words running together and lose your formatting, so we do suggest you in fact just submit as the appeal, a short summary - i.e. the six headings with a note added saying 'see attached word document which is my full appeal submission, plus other photos all attached', then 'attach evidence' which will be the full appeal word document or PDF, plus your photos & scans you want POPLA to see.

Kaz76

I left my car overnight at the Stretford Metrolink car park on Saturday and found one of these tickets when I picked it up the next day. (I had a drink in town and decided to get a taxi home rather than drive.) What a scam - the car park is free so what losses have they incurred?! I'm tempted to ignore it because if I get in contact with them then they will definitely know that I was the driver of the car as well as the registered keeper. On the other hand I don't want them to keep racking up the charges and for me to end up being taken to court for this BS.

Does anyone know if Care Parking (ha, what a joke!) vigorously pursue people for these rip-off charges?

It seems to me that TfGM is deliberately exploiting its customers to try and extract as much cash as they can. In my mind this is thievery. Clearly you're not going to read a sign's small print for the car park's terms and conditions when you already know that the car park is free. It's disgusting.

Coupon-mad

They can't pursue anything when you beat them at POPLA! Please read the NEWBIES sticky thread at the top of the forum, no you don't ignore it and OF COURSE a challenge can be written from the keeper (but only when the keeper gets the first letter). That's what is already explained in the NEWBIES sticky thread, begging newbies to 'READ THESE FAQS FIRST!'.

No link provided by me. If unsure how to use the blue breadcrumb trail linky above to get back to page one and the stickies, use the FORUM JUMP on the right instead and click 'GO'.

Kaz76

Thanks for taking the time to reply, but was it really necessary to be so patronising?!

Coupon-mad

Kaz76 wrote: »

Thanks for taking the time to reply, but was it really necessary to be so patronising?!

SORRY. I can be a moo sometimes but thought the above was clear & OK! You wouldn't believe how often people post on threads that are not theirs, asking questions which are already covered in the top threads on the forum. We do this every day for nowt...today I spent most of my day off work on this forum. We do it because we hate this scam of fake parking tickets but sometimes it makes me jaded to reply yet again telling someone how to use the forum, when that is explained when newbies sign up, with a video called 'new to the forum'?

Start a new thread if you still need help after reading the info threads (stickies) at the top.