Care Parking, Whitefield Metrolink, TfGM Manchester

daddydodo

Dear Sir/Madam,

Ref: PCN xxxxx
Car registration: xxxx xxx

I am appealing against the above Parking Charge Notice as the keeper of the above vehicle based on the following points:

1. Non-compliance with Care Parking’s obligations under Schedule 4 of Protection of Freedoms Act 2012

Specifically:
a) Paragraph 3(1)(c) states that Relevant Land excludes “any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.” and this is later explained in Paragraph 3(3) to be “the parking of a vehicle on land is “subject to statutory control” if any statutory provision imposes a liability (whether criminal or civil, and whether in the form of a fee or charge or a penalty of any kind) in respect of the parking on that land of vehicles generally or of vehicles of a description that includes the vehicle in question.” and Paragraph 3(4) “In sub-paragraph (3) “statutory provision” means any provision (apart from this Schedule) contained in … any subordinate legislation, whenever made, and for this purpose “subordinate legislation” means an Order in Council or any order, regulations, byelaws or other legislative instrument.“

The Metrolink Whitefield site where the alleged parking violation occurred is covered by byelaws, as conferred upon it by the Greater Manchester (Light Rapid Transit System) Act 1988 and the Greater Manchester (Light Rapid Transit System) (No2) Act 1988. and does therefore not meet the definition of Relevant Land as defined in the above paragraphs, so therefore the act cannot apply here.

b) Schedule 4 paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver. The following mandatory information has not been included in the Notice to Keeper.

The Notice to Keeper must inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose (including the means by which it was brought to the attention of drivers) and the other facts that made those charges payable.
The Notice to Keeper does not state that the creditor does not know both the name of the driver and a current address for service for the driver.
The Notice to Keeper must state that the keeper should provide the name and address of the driver, but did not state that the name and address of the driver were unknown,
The Notice to Keeper does not inform the keeper of any discount offered for prompt payment.
The 'period of parking' is not 'specified', only the time of issue of an alleged PCN.

The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A Notice to Keeper is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant Notice to Keeper is prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory Notice to Keeper wording means there is no 'keeper liability'.

2. Charge is unreasonable and not a genuine pre-estimate of loss

This car park is a free car park, provided for Metrolink tram users. I attach a copy of the driver’s tram ticket printed at 18:59 16-Nov-14 as proof the driver was a customer of Metrolink.

The amount requested on the Parking Charge Notice was £100 (rising to £150 in the “instance of further action”) which I contend to be punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. I put Care Parking to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated.

The Notice to Keeper letter refers to “breaking the terms and conditions of parking” so the charge must be a genuine pre-estimate of loss, and if so I contend this charge certainly is not based on any such calculation, but the appeal rejection specified that the “When parking at Metrolink Whitefield the driver of this vehicle agreed to pay a Parking charge of £100 if they did not park in accordance with the terms printed on the contractual warning signs”, in which case it appears that Care Parking are claiming a contractual charge applied, in which case I deem this charge to be punitive and unreasonable and covered under the Unfair Terms Consumer Contracts Regulations 1999. These regulations stop traders from punishing a consumer financially as part of a contract. As this ticket is alleged to have been issued under contract law, I deem it disproportionate compared to the cost of the free parking, unless Care Parking can prove otherwise.

In either case, the burden of proof lays with Care Parking to back the charge up with evidence for their calculations for coming to such a figure, so I await their justification for this charge and clarification on whether they deem this a contractual charge or damages for breach of contract.

Additionally, I have seen no proof that the driver was not a Metrolink customer who had parked in their customer car park and had simply left the car there overnight when the alleged parking violation occurred.

In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As the Parking Charge Notice sum is massively inflated, I require Care Parking to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.

3. No contract formed as signage insufficient

All terms are required to be so prominent and the risk of a charge so transparent that the information in its entirety must have been seen/accepted by the driver.

Upon visiting Metrolink Whitefield to check the site out for myself it is clear the signage is not sufficiently prominent for the driver to discern before parking, therefore failing to comply with the BPA Code of Practice requirements. As can be seen by the attached photographs taken at a similar distance as that to a driver entering the car park the signage clearly states that the car park is free for Metrolink customers. On the second sign directly below are words only just readable ‘This car park is for Metrolink customers only’. The remaining parts of the sign are written in such a small font as to be completely unreadable due to height and distance from the entrance road, and it is this which has the terms and conditions. Additionally, there were no signs visible to a driver exiting the car park on foot. It is entirely possible that a driver would enter the car park, having not been drawn to read the entrance sign as it was insufficient, and not seen any other signs depending on where they parked and how busy the car park was, and left without being made aware of any terms of parking.

I put it to Care Parking to prove that the legibility of the signs throughout the car park were sufficient on the date and time of the alleged offence, otherwise I contend that the signs in that car park (wording, position, and clarity) do not comply and failed 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. Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of the contravention that “Parking outside of tram operating hours” incurred a parking charge, and agreed to them. For this case I would expect the terms and condition to be equally as prominent as the signage which states ‘Free Parking For Metrolink Customers’.

Lastly, the contravention itself of “Parking outside of tram operating hours” also raises the following questions:

- What are considered tram service hours for the purpose of this point on the sign?
- If the car was parked during service hours, and left there at a point in time that tram service had ended, would this still be a violation of terms as the car had been “parked” during operating hours?
- The use of English language is unclear and ambiguous. Consider the following two statements.
‘The driver was parking the car at 6.55pm
The car was parked at 2.25am.

Clearly from this interpretation the alleged infringement of ‘Parking Outside of tram service hours’ is nonsense and invalid as in this case the driver was parking at 6.55pm not 2.25am, that is, parking inside of tram service hours. The attached driver’s tram ticket shows the driver would have been parking the car at approximately 6.55pm approximately 5 minutes before the ticket was printed.

The signage is unclear here and therefore cannot be expected to form any contract with a driver using the car park.

4. Lack of standing/authority from landowner to issue tickets

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 it to Care Parking to provide 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 (non-redacted) 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.

5. 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:
http://ec.europa.eu/justice/consumer-marketing/files/crd_guidance_en.pdf
''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:
http://www.thefreedictionary.com/rent
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.

Yours faithfully,
xxxxxx