Hope appeal to IAS will win this time as before

Sassii

Hi All

I won 2 appeals at IAS last May and I got 2 new PCNs from the same PPC at the same location. I checked the new threads and found things was changed from that time and IAS refused most appeals. So below is my appeal which it's not much different from last time if you can give me advise before sending. Sorry it's too long

Thanks all

PCN:
https://www.keepandshare.com/doc4/51134/201502051326-1-pdf-207k?da=y

Appeal rejection letter: https://www.keepandshare.com/doc4/51133/201502051326-pdf-766k?da=y

Dear IAS Adjudicator
Vehicle Registration:
PCN ref:
Date of PCN to keeper:

I am the registered Keeper of the above vehicle at the time of alleged parking contravention 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.



1. PCM mislead me for the reason of this PCN as they never administrate and failed to administrate the legal basis of that charge (ex.: under which Act, Law or Regulations they issued that PCN). So I consider it’s unlawful and PCM contractually agrees to pay the appealer £150, contract is accepted by performance, as result of their failure and wasting appealer time for looking in relevant Act, Laws & Regulations.
2. PCM doesn’t comply with Protection Of Freedom Act 2012.
3. PCM doesn’t comply with Terms in Consumer Contracts Regulations 1999.
4. The amount demanded is not a Pre-estimate of loss as mentioned in PCM appeal rejection letter dated (Attached).
5. I require the contract with the landowner is produced, as PCM are not the landowners and I contend they have no legal standing to pursue this charge.
6. PCM doesn’t comply with IPC Code. (Photos evidence attached)
7. As I am a resident of ????????, I can confirm that PCM started enforcement / reinforcement under IPC code without offering/delivering to me a residents' parking permit, so the required elements to create a 'parking contract' with me have not been met.
8. PCM doesn’t provide breach evidence of grace time.
9. I reserve the right to see all the evidences of the other party before a decision is made.
10. I expect your decisions will be based only on the law not on mitigation. Please administrate the law your decision based on and the name of adjudicator (under the legal services act).

Please find below detailed information about the points raised above.


1- PCM misleads me for the reason of this PCN as they never administrate & failed to administrate the legal basis of that PCN (ex.: under which Act, Law or Regulations they issued that PCN). So this PCN Unlawful
Also IPC COP stated that ‘’ We have created a truly independent appeals process that ensures landowners who unlawfully issue parking charges will not benefit from them’’ (Section: Forward, page 2) and ‘’ Unless otherwise stated, any terms within this code are to be given their same meaning as in schedule 4 of the Protection of Freedoms Act 2012’’ ((Section: Glossary, page 5).
So I’m asking PCM to clear that with no doubt and PCM contractually agrees to pay the appealer £150, contract is accepted by performance, for wasting appealer time for looking in relevant Act, Laws & Regulations results in PCM failure to do that

As I can see the relevant Laws could PCM used to issue this PCN are under POFA 2012 or Terms in Consumer Contracts Regulations 1999 and if that Act or Regulations don’t apply please ask PCM to clear that with no doubt and PCM contractually agrees to pay the appealer £150, contract is accepted by performance.

a. PCM appeal rejection letter said ‘’ you agree to pay a charge’’ and ‘’ the driver agrees to pay the charge stated’’ which it’s under Unfair Terms in Consumer Contracts Regulations 1999.
b. The sign is clearly not creating a contractual agreement so there is no genuine fee to park 'not in accordance' (i.e. in breach) of the terms. You cannot enter into a contract to do something that is not permitted.
2- PCM doesn’t comply with Protection Of Freedom Act 2012.section 7-2 (a), & 8-2(a) & 9-2(a) which stated clearly that ‘’ The notice must specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates’’. And it’s clearly seen from PCN & appeal rejection letter (attached) that there is no period of parking specified in it at all.
3- PCM doesn’t comply with Terms in Consumer Contracts Regulations 1999. As:

In the Unfair Terms in Consumer Contracts Regulations 1999:-

''5.(1) 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.
(2) 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.''

Also the OFT ‘Unfair Contract Terms Guidance’:
Group 18(a): Allowing the supplier to impose unfair financial burdens
‘'18.1.3 ...transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.’’
A driver / keeper cannot enter into a contract to pay for something that is expressly prohibited ( Sign attached) or unauthorised because that would make it a disguised penalty, according to the Office of Fair Trading. The signage and PCM appeal rejection letter are ambiguous but both give away the fact that it is not a contractual fee but a charge for 'unauthorised parking'. A genuine contractual fee would have a payment mechanism related to the true cost of the supply of a parking space, not charge the same punitive amount whether the car stayed for 1 minute or 24 hours.

This charge represents an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘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.’
4- This charge does not represent a genuine pre-estimate of loss as per PCM appeal rejection letter dated ??????? and it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. PCM may try to allege their minimal signage creates a contractual agreement, but this is denied.

The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. Parking charges cannot include tax-deductible business costs for running a parking company, such as site signage and maintenance, staff employment, membership fees, postage, etc. It shouldn’t be recoverable as it is being enforced purely as a penalty. Since there is no other income at this site, these PCNs represent the only profit for PCM and it is clear that they cannot be operating at a permanent loss.

5- I put PCM to strict proof that they informed the resident of moving from BPA code to IPC code and they have the proper legal authorisation from the landowner to contract with drivers and to enforce charges in their own name as creditor in the courts for breach of contract. To show compliance with the IPC COP, I require PCM to produce the landowner contract - not just an inadmissible 'witness statement' saying such a contract exists - since they do not own the land. I contend that any business arrangement for parking services (if it exists) is merely an agency matter between the landowner and PCM and cannot impact upon drivers or keepers whose tenancy grants them the overriding legal right to peaceful enjoyment of their property (including parking spaces).
It has also been widely reported that some parking companies have provided photocopied “witness statements” instead of the relevant contract. These highly questionable documents from parking operators have been exposed in the public domain as sometimes having had the date added after 'witness signature' by another person, adding a random date to suit a court or IAS case. These witness statements are therefore not relevant to a specific event and the details are far too unreliable to confirm compliance of the contract as defined in the IPC CoP and would fail to meet the level of certainty required for a IAS or court decision. If PCM produce a 'witness statement' I contend that 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 instead of the landowner contract itself, that this is disregarded and that the Chief Adjudicator is required to investigate this issue and consider carefully the serious irregularities known about these documents if the assessor in my case is minded to consider one as evidence.

6- PCM doesn’t comply with IPC COP as members of the IPC who operate within the private parking sector are required to subscribe to the AOS and adhere to this Code Of Practice which defines the core standards necessary to ensure transparency and fairness. As:
a. There are no car park entrance signs at all. Specially for visitors car Park (photos attached)
b. Signs in this car park are very hard to read and understand and some signs are 3 meters high. IPC COP Schedule 1- Signage stated that‘’ no part of the sign which contains relevant text should be over 6’, or under 12”, from ground level’’. (Photos attached)
c. As you enter into the area there are signs mounted lighting pole against the right & left hand side which in order to read requires the driver to look 90 degrees away from the road ahead and that doesn’t comply with IPC Code PART B, 2 Signs & Schedule 1 which stated that ‘’ The sign must be readable from far enough away so that drivers can read all of the Group A and Group B text without needing to look more than 10 degrees away from the road ahead’’. (Photos attached)
d. Some signs placed in very dark area which is impossible to read and that doesn’t comply with IPC Code Schedule 1 Contrast and illumination which stated that ‘’If signs cannot be read then resulting charges that depend upon their content will not be enforceable’’.
e. The capital height of the Group 1 & 2 text size does not comply with IPC COP Schedule 1 Text size (for approach speed of traffic between 25-39 mph Group 1 text is 90mm and Group 2 is 45mm). From the attached photos it clearly shows that the Group 1 capital height in the signage around 25mm only and group 2 less than 10mm.
f. PCM doesn’t provide any breaching evidence of grace period at all although I asked them for that..


7- PCM failed to supply me with a resident car parking permit. Omitting to send me a permit before attempting to enforce charges puts PCM in breach of their landowner contract because I contend that PCM undertake to enforce / reinforce under IPC code on this site only after permits have been issued. It also means there was/is no contract with any driver of my car or myself, because as a resident - not a trespasser – (utility bill attached as prove of resident) I can only possibly agree to the 'offer' of a parking scheme and consideration (the parking space) when I accept the terms of such a scheme in advance of the parking event, by the handing over/delivery of a permit that PCM undertook to send me. They failed to do so, therefore was no meeting of minds, no offer, no consideration and no acceptance so the elements of a contract are conspicuous by their absence. If PCM can’t defend the above the PCM contractually agrees to pay the appealer £150.

PCM also force residents to buy permits for the visitor’s car park which it’s allowed to park free for residents before PCM started enforcement.


Finally, a third party agent cannot pursue such a charge anyway, as was found in ParkingEye v Sharma: Case No. 3QT62646 in the Brentford County Court23/10/2013. District Judge Jenkins dismissed the case on the grounds that the parking contract was a commercial matter between Parking Eye and the landowner, and didn’t create any contractual relationship with motorists who used the car park. I submit that this applies in this case as well.

Yours,

Half_way

If its been issued under the same circumstances in the same car park then technically an identical challenge should win.
However this is the IAS/IPC were dealing with here.

Umkomaas

This will be a very interesting one. Please keep us informed Sassii.

bazster

If the circumstances are identical send an identical challenge. Don't give them wriggle room by altering the challenge.

This will be very interesting.

Sassii

bazster wrote: »

If the circumstances are identical send an identical challenge. Don't give them wriggle room by altering the challenge.

This will be very interesting.

It's not 100% identical as last time they issued PCN with BPA logo but offered appeal to IAS and there were some signage refereed to BPA as well. Also they refer POFA 2012 in their previous PCNs so I caught up this in my previous appeals

Sassii

Umkomaas wrote: »

This will be a very interesting one. Please keep us informed Sassii.

As expected IAS reject the appeal as below:

Appeal Outcome: Dismissed

The Adjudicators comments are as follows:

"The Appellant raises a number of points and I will respond to each.

1. The legal basis for the charge is the contract, the terms of which are set out on the sign.

2. I have not considered this, as PoFA only relates to claims against the keeper. Given the Appellant’s refusal to name the driver I am inferring they are the driver and PoFA is no longer relevant.

3. The UCTR do not apply. If the Appellant was not happy with the terms they had all of the negotiating power and could park elsewhere.

4. Loss is not relevant. The contractual terms make clear that if a driver parks outside of a marked bay or without a permit they agree to pay the charge. Once the driver has agreed to pay the Appellant does not have to prove anything.

5. In this appeal the onus is on the Appellant to prove their claims. The Operator does not have to prove anything.

6. Having considered the evidence I am satisfied there are sufficient number of signs, that they are clear and provided sufficient notice.

7. The reason the Appellant did not have a permit is irrelevant.

8. I don’t understand this point.

Mitigation is not relevant, I can only consider legal points.

"

As your appeal has been dismissed, the Independent Adjudicator has found, upon the evidence provided, that the parking charge was lawfully incurred.

As this appeal has not been resolved in your favour, the IAS is unable to intervene further in this matter.

The Operator must now allow you 14 days to make payment before they commence any action to enforce the charge.

Should you continue to contest the charge then you should consider obtaining independent legal advice.

Yours sincerely
The Independent Appeals Service

bod1467

Typical IAS kangaroo court judgment.

They really are beyond a joke now!

I wonder if Pranky feels this is worthy of a blog?

waamo

Number 2 is interesting. Don't name the driver and they can say POFA doesn't apply. If you named the driver POFA wouldn't apply.

Zero_Gravitas

Just for completeness, could you post your original successful appeal and the response from the IAS assessor on this thread, so there's evidence in one place of the inconsistency of the IAS.

Thanks,

ZG.

Technics

Yes we've seen number 2 a few times. How an independent unbiased adjudicator can draw that inference is beyond me. If the PPC writes to registered keeper claiming the driver is unknown how than the IAS state that they know who was driving? The driver must be unknown for the PPC to need keeper details. What are the IAS going to do when a keeper later finds proof that they weren't the driver?

My complaint would be to the IPC and DVLA for PPC non-compliance with the IPC CoP. As far as I'm concerned it doesn't matter that the IAS is the IPC's appeal service. It is clearly not independent and hence the PPC has breached the CoP by failing to provide an independent appeal. To quote their CoP, "A robust and fair appeals process is important in promoting consumer confidence."

Fergie76

So the OP never had a permit because the PPC never gave them one and that's irrelevant. So now, all PPC's in every IPC car park, just needs to say a new permit is required everyday, but not actually issue any permits and then at 00.01, issue a parking charge to every car in the car park every day?