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TPS Parking Charge, Lincoln County Hospital

Hi,

As a staff working at Lincoln County Hospital, I have a parking permit. Unfortunately, that day, the parking permit fell from the dashboard and I promptly received the "windscreen ticket". As I regularly lurk on this website, I reviewed the previous posts and ignored it. I received the NTK document in post. I emailed them this reply:

Dear Sir,
The Registered Keeper of the above vehicle denies any liability for the unenforceable charge detailed in the above Parking Charge Notice.

Firstly, for clarity: The driver will not be identified during this appeal process as this is not required under POFA 2012.

The charge does not represent any form of loss to you or the hospital trust as the vehicle is (and was at the time) covered by a fully paid for permit, and therefore the charge is purely punitive, a penalty, and unlawful. The parking charge is invalid, as there has been no genuine pre-estimate of loss. A copy of the Parking Permit is attached as proof.

Please confirm acceptance of this challenge and cancel the charge, or provide a POPLA verification code where a vigorous and robust challenge will be mounted. Hence please ensure that if the appeal is rejected, the POPLA code in included.

No further correspondence will be entered into with you on this matter. If nothing further is received from you within 35 days of the date of this letter, it will be assumed the challenge is accepted and the charge cancelled. If you decide to persist with this unwarranted threat, I will have to put unnecessary expense and hours of time in appealing or defending this matter. As such, you will be liable for my costs and a pre-estimate of my loss (mine is genuine) - is that this sum will be likely to exceed £100.

Registered Keeper


I received the following reply

Thank you for your correspondence, the content of which has been noted.

In your recent correspondence you have declared that you were not the driver at the time of the parking incident. Therefore if you were not the driver, please provide the drivers full name and address within 14 days beginning with the day after on which this correspondence was sent. Please note that we do not accept your charges or fees incurred for the processing and corresponding of this Parking Charge Notice.

Please be aware, that as we have not been notified of the full name and a current address for service of the driver, under schedule 4 of the Protection of Freedoms Act 2012 (‘the Act’) we do have the right, subject to the requirements of the act, to recover from the keeper of the vehicle at the time it was parked, so much of that amount that remains unpaid.

We look forward to hearing from you within due course
.

They have enclosed the POPLA code.

I have drafted the following reply . I would be grateful if you all wise men / women could guide me as whether it would be sufficient. Also do I need to tick all the four boxes at the top?

Your help much appreciated.

wel_home
«1

Replies

  • Apologies. The POPLA appeal letter enclosed:

    vehicle registration
    pcn number : __________
    operator name: TPS Parking Solution

    why you are appealing – please tick
    the vehicle was not
    improperly parked

    the parking charge (ticket)
    exceeded the appropriate amount

    the vehicle was stolen

    I am not liable
    for the parking charge



    [FONT=&quot]
    [/FONT]
    [FONT=&quot]I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.[/FONT]
    The vehicle is (and was at the time) covered by a fully paid for permit, and therefore the charge is purely punitive, a penalty, and unlawful. The parking charge is invalid, as there has been no genuine pre-estimate of loss.
    [FONT=&quot]
    I am also contesting it on the following grounds:[/FONT]


    [FONT=&quot]1. The amount demanded is not a Genuine Pre-estimate of loss.

    2. No contract with the driver in question[/FONT]

    [FONT=&quot]
    3. Neither the parking company or their client has proved that they have planning consent to charge motorists for any alleged contravention.

    4. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.

    5. The signage at the car park was not compliant with the British Parking Association standards andt here was no valid contract between the parking company and the driver.

    6. The Terms levied were unfair

    7. The terms levied were unreasonable

    Here are the detailed appeal points.[/FONT]


    [FONT=&quot]1. [/FONT][FONT=&quot]The amount demanded is not a Genuine Pre-estimate of loss

    [/FONT]
    [FONT=&quot]The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre.

    The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location. The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach. [/FONT]
    [FONT=&quot]
    The BPA code of practice states:

    19.5 If the parking charge that the driver is being asked to pay
    is for a breach of contract or act of trespass, this charge
    must be based on the genuine pre-estimate of loss that
    you suffer.

    19.6 If your parking charge is based upon a contractually
    agreed sum, that charge cannot be punitive or
    unreasonable.

    I require TPS to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses.

    In this case parking was reserved for staff of the hospital. As a staff, I had a valid parking permit as a result.

    For this example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.

    It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.[/FONT]

    [FONT=&quot]2. No contract with driver

    [/FONT]
    [FONT=&quot]There is no contract between PCC and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied. [/FONT]
    [FONT=&quot]

    3. No right to charge motorists

    [/FONT]
    [FONT=&quot]I note that the parking company has not been engaged by the landowner, but by a lessee or tenant of the land. I require proof from the actual landowner that their contract with the lessee/tenant gives authority for any form of parking restrictions or charges to be brought in. (There are VAT implications when a car park is a revenue generating business that may impact upon a landowner and that is why it needs to be established that they need to have granted permission in their lease.

    4. No valid contract with landowner

    It is widely known that some contracts between landowner and parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.[/FONT]
    [FONT=&quot]
    In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require the parking company to produce a copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.

    It has also been widely reported that some parking companies have provided “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, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner ,has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company.[/FONT]
    [FONT=&quot]
    I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, 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 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 hand, 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 consideration moving from the landowner in return for the supply of parking services." In other words, 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, as set out above.

    5. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver

    Following receipt of the charge, I have personally visited the site in question. I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.

    As a POPLA assessor has said previously in an adjudication
    “Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

    The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site.

    The idea that any driver would accept these terms knowingly is perverse and beyond credibility. [/FONT]
    [FONT=&quot]
    I also contend that the signs on this land (wording, position, clarity) 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])


    [/FONT]
    [FONT=&quot]6. Terms levied unfair

    [/FONT]
    [FONT=&quot]The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, 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" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term."

    7. Terms Levied Unreasonable

    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.”

    On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law. This concludes my appeal.

    [FONT=&quot][FONT=&quot]wel_home[/FONT][/FONT]
    [/FONT]
  • edited 31 January 2015 at 8:57PM
    HB58HB58 Forumite
    1.8K Posts
    edited 31 January 2015 at 8:57PM
    I'm a newbie to this issue so I could well be wrong. When you wrote
    "In this case parking was reserved for staff of the hospital. As a staff, I had a valid parking permit as a result." you appear to have admitted to being the driver. I'm sure someone more knowledgeable will comment.

    The above phrase is also grammatically poor, I think that - if you are going to include it - it should read ' as a member of staff...'
  • edited 31 January 2015 at 9:26PM
    RedxRedx Forumite
    38.1K Posts
    Eighth Anniversary 10,000 Posts Name Dropper Photogenic
    Forumite
    edited 31 January 2015 at 9:26PM
    agreed ^^^^^^^^^^^^^^

    it should say something like this
    [FONT=&quot]In this case parking was reserved for the staff [FONT=&quot]at[/FONT] the hospital. As [FONT=&quot]the driver was a[/FONT] staff member , [FONT=&quot]they had[/FONT] a valid parking permit issued[FONT=&quot] and in the vehicle , [/FONT] so the invoice should have been cancelled [FONT=&quot]at[/FONT] the initial appeal.
    [/FONT]
    [FONT=&quot][FONT=&quot]

    [FONT=&quot]never fall into the trap of saying me , myself or I , anytime you do , check the context

    [FONT=&quot]othwerwise it looks ok to me having had a skim read, but check for any other errors [FONT=&quot]too

    [FONT=&quot]tick 3 of 4 boxes (not stolen)

    [FONT=&quot]good [FONT=&quot]to see people doing the research and p[FONT=&quot]utting up a strong case from the off[/FONT][/FONT][/FONT]
    [/FONT] [/FONT][/FONT][/FONT][/FONT][/FONT]
  • Hi Redx / HB58,

    Thanks for the reply. You were right, the first sentence was "poor"!

    Any more suggestions?

    wel_home
  • hoohoohoohoo Forumite
    1.7K Posts
    Right, but this thread can now be used as evidence, so its too late to shut the stable door.
    Dedicated to driving up standards in parking
  • POPLA says that failing to display a permit when the company knows one exists is not a loss to the company or the landowner.

    It is also not the same as failing to display a P&D ticket.

    This was a sensible judgment by Chris Adamson last year.
  • Hi BenefitMaster,

    Thanks for the reply. I had tried 'googling' the POPLA judgement you had quoted, but was unable to find it. Can you please post me the link or the relevant quotes that I can include in my reply.

    HooHoo, I have not submitted the POPLA appeal yet. I wanted advise on this forum, before submitting the appeal.

    wel_home
  • RedxRedx Forumite
    38.1K Posts
    Eighth Anniversary 10,000 Posts Name Dropper Photogenic
    Forumite
    it will be in here http://forums.moneysavingexpert.com/showthread.php?t=4488337

    start from near the end and go backwards
  • Hi,

    Good news. Got the email back from POPLA. The parking charge has been cancelled by TPS, a few days after submitting the appeal (online).

    Thanks to everyone for their help. Much appreciated.

    wel_home
  • Ralph-yRalph-y Forumite
    4.5K Posts
    Tenth Anniversary 1,000 Posts Name Dropper Photogenic
    Forumite
    First ... well done ...

    When you received the fake fine did you complain to your Trust?

    If you did not then, then do so now ..... do you belong to a union?

    Ralph:cool:
This discussion has been closed.
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