P4 Parking PCN

bondyy

Hi all, I'm back with another PCN for the exact same development as before. Fortunately it was issued to a friend, not me. Here's my previous thread, where I was successful in my POPLA appeal.

https://forums.moneysavingexpert.com/discussion/5002457

My friend is now at the POPLA appeal stage and I've adapted my previous appeal to suit his circumstances. I'd very much appreciate some of you fine folk giving it a once over to check its still all relevant.

Context:
My friend rents an apartment at the development in London, they have a residents permit which gives them a parking space in the car park under their building. At the other end of the development is the concierge desk, daycare centre and medical centre. There are visitor bays for using the daycare/medical centre.

My friend was parked in the visitor bay, using the medical centre, when they were issued with the PCN. The reason given was "Parked in a visitor bay with a residents permit" (grrrr). There are no signs saying a resident cannot also be a visitor at the medical centre.

POPLA Appeal draft below:

bondyy

Parking Charge Number (PCN): xxxxxxxx
Vehicle Reg: xxxxxxxx
Operator: P4 Parking also t/as Nighthawk Parking

I am the keeper of the vehicle which was issued with a PCN for being “Parked in a visitor bay with a resident permit”. I challenged this notice on a number of issues. I then received a rejection with regards to the alleged contravention. I would like to appeal this notice on the following grounds.

1. Vehicle parked in compliance with all signage and regulations
2. PCN neither a genuine contractual fee nor genuine pre-estimate of loss
3. No contract assigning rights to P4Parking to enforce contracts with drivers
4. Non compliant signage
5. Charge non compliant to the BPA Code of Practice

1. Vehicle parked in compliance with all signage and regulations

The reason given for the issue of the PCN was “parked in a visitor bay with resident permit”. Nowhere, on any signage, is this explicitly identified as a breach of the parking terms.

The visitor bay in which the vehicle was parked contains two signs, one from P4 Parking which threatens a punitive charge for parking in breach of the terms, and another from only the landowner only stating “Visitor parking for Daycare Nursery & Medical Centre only”. It further states “Maximum stay 15 minutes or register with Medical Centre reception desk” (see attached photos). This signage clearly gives permission for any visitor of either the medical centre or the nursery to stay for at 15 minutes, or longer if registered at the reception desk. It does not exclude residents of the large development, who of course can be visitors to both the medical centre and the nursery, from parking in the bays.

The driver was a visitor to the medical centre when the PCN was issued, and stayed for less than the 15 minutes allowed by the signage (which is not under dispute). They were therefore parked in compliance with all signage and regulations presented.

I therefore require P4Parking to supply:
• Evidence that a contract was formed with the driver under which residents of the development were explicitly excluded from visiting both the medical centre and the nursery.

2. Neither a genuine contractual fee nor genuine pre-estimate of loss

The non-compliant signage refers to a ‘ticketed excess charge’ to be issued on breach of terms/failure to comply, the wording incorrectly implies that this penalty is an excess charge (which it cannot be, because parking is provided free of charge to visitors and residents at the development). Therefore this demand is a punitive charge which is not related to any loss, and not a contractually agreed parking tariff. P4Parking cannot demonstrate any initial quantifiable loss as the parking spaces are provided free of charge. 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.

P4Parking’s notice alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from a parking event. 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. P4Parking 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.

As such, P4Parking cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists, some where they have pay and display, and others which are free car parks. Given that P4Parking charge the same lump sum for a 5 minute stay as they would for 3 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear this charge is not a genuine pre-estimate of loss caused by this parking incident.

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''.

Neither can the charge be 'commercially justified'. POPLA Assessor Chris Adamson stated in June 2014 that:
''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

I therefore require P4Parking to supply:
• A detailed breakdown of their genuine pre-estimate of loss based upon the alleged incorrect use of free visitor bays.

3. No contract assigning rights to P4Parking to enforce charges in the courts or to form their own contracts with drivers

I believe that P4Parking has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, or to pursue charges for breach in their own name. In the absence of such title, P4Parking must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This has not been produced by P4Parking in their rejection statement so I have no proof that such a document is in existence. I contend that P4Parking merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. A commercial site agent for the true landholder has no automatic standing, nor authority, in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.

I therefore require P4Parking to supply:
• An unredacted, contemporaneous copy of the contract between P4Parking and the landowner.

This is required so that POPLA and I can check that it allows P4Parking to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.).


4. Non compliant signage

I submit that this signage failed to comply with the BPA Code of Practice (CoP) section 18 and Appendix B. A notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The signs fail to properly warn/inform drivers of the terms and any consequences for breach. Any alleged contract could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late.

The closest sign to the entrance of the development is inadequate in size and prominence, placed high on a pole, with small text and set far back from the road. I say that in order for drivers to read this, they must park, get out of their vehicles and use a stepladder to read the sign. The sign therefore breaches Appendix B of the BPA CoP, which states ''Signs should be readable and understandable at all times...”, Appendix B also states that the terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. These signs are not legible from any position within a vehicle or when entering the development.

I therefore require P4Parking to supply:
• Detailed evidence demonstrating that the signage on site complies with the BPA Code of Practice, including a map of signage throughout the site, detailing the heights and sizes of said signage, and photos of signage at the entrance to the site and in the bay in which the driver parked.

5. Charge non compliant to the BPA Code of Practice
The ticket received from P4 Parking had no reference to VAT shown on it. If it was an invoice for payment of a service contract, it must show VAT details on it, i.e., for parking services amount owed £50 + VAT at 20% = £60. Since there is no mention of VAT it must therefore be presumed to be nil or zero rated which would be the applicable rate for a fine or penalty, which of course is non compliant to the BPA Code of Practice itself which states that the use of fine or penalty may not be used. That doesn’t legitimise the use of a more convenient term though. If the amount demanded were a contractual charge then it fails the test for that based entirely upon the wording on the ticket. It MUST show the VAT details of the company in accordance with the BPA Code of Practice, and it does not, therefore cannot be a breach of an alleged contractual arrangement.

With all this in mind, I request that my appeal is upheld and for POPLA to instruct P4Parking to cancel the PCN.

Yours faithfully,


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Guys_Dad

Can your friend not get some proof of attendance from the Medical Centre?

That would be game set and match if accompanied with a photo of the sign.

bondyy

Guys_Dad wrote: »

Can your friend not get some proof of attendance from the Medical Centre?

That would be game set and match if accompanied with a photo of the sign.

Good point, I'll ask to see if he got any receipts etc.

Anyone else care to comment on the appeal draft? I need to pass it on tomorrow before I go away. Anything I've missed or should remove?