Meteor Penalty Charge Appeal Dorking Station

robonn

Hi guys, having learnt so much from so many detailed posts, just wanted to share my appeal story too. Hopefully I'll win and this thread will help the next person.

I was penalised in Dorking Station, a car park run by Meteor / Vinci, for parking outside of a bay, when I had previously bought a season tick in good faith.

So, long story short, read the excellent sticky FAQs thread (am a newbie, so can't post link). And in particular, @Fuziduck's excellent and detailed story (again, sorry, can't post link).

So having got my PCN on 6/10/15, I duly appealed on day 21 on 27/10/15 using the approved template:

I appeal as follows as the keeper of this car

- your charge is not a genuine pre-estimate of loss
- the parking ticket was paid by the driver so no loss has occurred (see attached)
- you don't own the car park so have no standing
- a 'parking charge notice' cannot morph into a penalty under bye-laws
- an allegation of parking outside a bay isn't a bye-law matter
- the signs at this site are wholly misleading about bye-laws/contraventions

I suggest you cancel this ticket but if not, you are required to send me a POPLA code as promised in the wording of the 'PCN'. I remind you that the BPA Code of Practice says that 'drivers and keepers' can appeal to POPLA and I am the keeper.

The driver will not be identified and there is no lawful reason for me to help you in that regard if you allege you formed a contract with that person. You have two choices, POPLA code or cancellation.

I expect an acknowledgement of this appeal within 14 days and a reply within 35 days.

Bizarrely, on 4/11/15, I got the following reply:

A Parking Charge Notice was issued to your vehicle on 6th January 2015 at Lewes Station car park. As per the procedure detailed on the back of the notice, a payment or appeal must be made within 28 days of the notice being issued.

As no payment or appeal was received within 28 days, your case has now escalated to PCN Debt Recovery and Prosecutions Service. If they have not already done so, they will be writing to you soon.

As such, this case is no longer in our hands and all correspondence must now be made directly to PCN Debt Recovery and Prosecution Services. Their contact telephone number is 08442594786.

I apologise that we cannot be of any further assistance in this matter.

Which of course bares no relation at all to my case! So on the 5th, I got another email saying:

Please accept my sincere apologies for my previous email. Your appeal has been received and will be responded to in due course.

Which made more sense! So that's the latest, will update as and when I hear...

Thanks again for everyone who's made this process so much easier for me so far. Cheers!

enfield_freddy

send the first reply to the BPA stating that they have failed to send a POPLa code , let the BPA give them a rollocking for there stupidity , (don,t mention the second email)

robonn

Thanks EF - have done exactly that. Let's see what happens now...

robonn

So I sent this to the BPA in response to the first email from Vinci:

Dear Sir or Madam, I have received the response below from Vinci with regards to my penalty charge notice appeal. As I understand it, they have failed in their obligation to provide a POPLA verification code. Please can you advise on the appropriate next step?

And then today I received the following:

Unfortunately an appeal must be received within 28 days of the ticket issue or 28 days from the Notice to Keeper, if this timeframe is not met there is no further appeal to POPLA. The parking charge notice was issued on 06.01.15 and your appeal is dated 27.10.15 and POPLA is not available at this late stage.

The Approved Operator Scheme (AOS) and its Code of Practice was developed by the BPA to bring a degree of regulation to an industry without primary legislation. Regrettably as we are not a regulatory authority, we are not empowered to become involved in individual disputes between the motorist and the car park operator and have no authority to overturn an operator’s decision. Therefore, any action regarding your individual circumstances are out of our control and should be directed to the operator.

As a membership association and not a regulatory body we cannot recall charges progressed to a debt collection and have no power to intervene in the appeals procedure with either the operator or POPLA and cannot request an operator to cancel, refund or recall any parking charge notices referred to a debt collection agency.

We can however investigate evidence of a possible breach of any of the points raised in the Code of Practice.

The private parking landscape significantly improved for motorists who had received a PCN and felt that it had been issued inappropriately issued on 1st October 2012 when the BPA launched POPLA (Parking on Private Land Appeals) in England and Wales – a service that gave the motorist the chance to have their case independently heard by suitably qualified assessors after having their initial representations to the parking operator rejected. POPLA is free to the motorist, fully funded by the private parking sector and its decisions are binding on the operator but not on the motorist. Since the arrival of POPLA over 35,000 motorists have had their appeal independently assessed and at no cost to them.

So they've basically missed the point - which was that the reply from Meteor / Vinci bore no relation to the date or location of my own PCN, and also failed to provide a POPLA code. In fairness, this is my own stupid fault as I made no mention of that in my note - was rushing - so they've just taken it as read.

Presume my next move is just to clarify the date and location of my car's PCN and reiterate that Vinci's response to my appeal lacked a POPLA code?

Won't they just advise that I wait until the appeal response deadline passes before they get involved?

robonn

So I replied to the BPA email:

Just to clarify, the PCN was placed on my car on 6/10/15 at Dorking Station carpark. My appeal was in relation to this PCN and therefore was sent within the allowed timeframe. So not only has the operator made a number of errors in their response to my appeal, there is also no POPLA code.

Please can you advise?

Let's see what happens...

enfield_freddy

did the BPA not spot the difference in location ,?


how was your appeal made , online or by post , if post , do you have POP? , or if nby email did you get a conformation email?

robonn

To be fair, I'd not included a pic of the PCN with the original appeal, so I guess they weren't to know. It was via email, and the only confirmations I've had were the two responses in my original post - the latter of which (the apology for the error) didn't actually reply to my appeal email directly or refer to the specific PCN reference no.

Anyway, the BPA replied today:

As the parking operator has advised the charge was issued on the 06.01.15 can you please provide a copy of the parking charge notice placed on the vehicle on 06.10.15. This will enable us to look into the matter further.

And so I sent them a photo of the PCN. Let's see what happens next...

enfield_freddy

time to highlight the change of station on the copy you send to them

robonn

Hi guys, so I've now heard back on the appeal from Meteor / Vinci (now known at Indigo). They've turned it down and provided a POPLA code:

Thank you for your correspondence in relation to the above Parking Charge Notice. Meteor Parking Ltd operates as an AOS approved operator, in accordance with the British Parking Association Code of Practice for private parking. When parking on private land, the onus rests with the motorist to accept and to comply with the land owners Terms and Conditions of parking.

On the date above, you chose to park your vehicle in breach of the Terms and Conditions of parking which are displayed at the entrance to the car park. Therefore; your vehicle was correctly issued with a Parking Charge Notice for:

Breach Code 7: Not parked correctly within a marked bay

Having reviewed the photographic evidence which is also attached, you have not parked correctly within a marked bay. If the car park is full, it does not entitle you to park in breach of the Terms and Conditions and alternative parking / travel arrangements must be made. It clearly states in the Terms and Conditions that a ticket does not entitle you, unless otherwise specified, to any particular space in the car park. Therefore if you wish to purchase a ticket before securing a bay, this is done at your own risk as we cannot guarantee that a space will be available.

By entering the car park you are agreeing to park in accordance with the Terms and Conditions and it is the customer's responsibility to ensure they observe the Terms and Conditions before leaving their vehicle in the car park. It clearly states that “No vehicle shall be parked so as to take up more than one space designated for parking”, “No Vehicle shall obstruct any access or circulation area within the Car Park” and “No Vehicle shall park other than within the spaces designated for parking”.

Having reviewed the circumstances surrounding the issuing of the above Parking Charge Notice, and having considered your reasons for appeal, our decision is to uphold the Parking Charge Notice.

Payment at the reduced rate of £50.00 for the Parking Charge Notice will be accepted if received within 14 days of the date of this letter. Payment can be made using the following options:

- Online at https://www.vincipark.co.uk/consumer/faq/pcn
- Cheque or postal order made payable to “Meteor Parking Ltd” sent to the address above (please be sure to include your PCN number on the rear)
- Over the telephone with one of our team on 03301235247

You have now reached the end of our internal appeals procedure. Should you remain dissatisfied with this decision, you may further your appeal to the Parking On Private Land Appeal service (POPLA) within 28 days of this notice of rejection, details of which are available at https://www.popla.co.uk. Remember to use your 10 digit verification code shown at the top of this letter.

If you would prefer to submit your POPLA appeal by post, please do not hesitate to contact us on the details shown above.

Please note that should your appeal to POPLA be unsuccessful, Meteor Parking Ltd reserves the right to pursue the full amount outstanding as stated on the Parking Charge Notice, plus any additional associated costs in accordance with our Terms and Conditions of parking.

By law we are also required to inform you that Ombudsman Services (https://www.ombudsmanservices.org/)
provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA, as explained above.

Yours sincerely,

So I'll now follow the advice in the POPLA part of the newbies thread (https://forums.moneysavingexpert.com/discussion/4816822) and also @Fuziduck's excellent post (https://forums.moneysavingexpert.com/discussion/5067924) - minus the point about 'no visual evidence' as they have included photos of my car outside of the bay in their appeal rejection letter.

- - -

Dear POPLA Assessor, as the registered keeper of the vehicle above I am appealing against the parking charge above. Below are my grounds for non-liability and I would ask that all points are taken into consideration.

1) No standing or authority to neither pursue charges or form contracts with drivers. Meteor 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 license to put signs up and 'ticket' vehicles on site, merely acting as agents for the Train Operator. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.

Meteor are required to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. 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 any landholder). 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 otherwise there is no authority.

2) No genuine pre-estimate of loss. The parking charge did not fall under the category of a GPEOL on the following points:

i. The correct charge for the period in question, which was paid in full, was £6.10, with the permit valid until 27/10/15. The parking contravention charge of £90 is out of all proportion to any potential loss on the part of Meteor and therefore does not represent a genuine pre-estimate of loss.

ii. There is no loss flowing from this parking event. 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.

3) Unreasonable/Unfair Terms. The charge being claimed by Meteor is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999': ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

Test of fairness:
''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.

5.1 Unfair terms are not enforceable against the consumer.

9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

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.”

It is wholly unreasonable to attempt to profit by charging a disproportionate sum where no loss has been caused by a driver who has proved they paid the tariff in good faith. Meteor require strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to a persons detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

4) The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between Meteor and the driver. There was no offer, consideration or acceptance flowing between this Operator and the driver which could have created any contract for the driver to pay this extortionate sum over and above the correct tariff already paid.

The main sign says ‘failure to display a valid ticket may result in you receiving a parking charge notice.’ The driver did not contravene the sign which says nothing readable about any other contraventions at all. The only noticeable risk of getting a PCN is for not displaying a ticket, nothing else. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign (on the opposite side of the car park) when entering the station platform area, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) Meteor have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.

5) Meteor have failed to establish keeper liability. Sites designated as Railways by the Secretary of State are subject to statutory control in the form of bylaws. POFA 2012 does not apply because land subject to statutory control is not 'relevant land' - this was found as fact by Senior Assessor Chris Adamson in POPLA ref 6060164050. The driver has not been identified, therefore as registered keeper I cannot lawfully be held liable for this charge. If Meteor argue otherwise then they must produce the bylaws and maps to show that this part of the Railway is somehow exempt from statutory control. The onus falls upon Meteor to demonstrate this and I put them to strict proof on this point.

Meteor have failed to serve a Notice to Keeper. It has been completely omitted, Meteor appear to have assumed it is not needed when a keeper sends reps against a windscreen ticket. But in the schedule it is clear that a NTK is a fundamental document where the Operator does not know who the driver was (and in this case there have been no admissions on that matter.) Therefore even if this was a site where bylaws affecting parking did not take precedence, Meteor have failed to establish keeper liability by forgetting the NTK.

I request that my appeal is upheld and that POPLA inform Meteor accordingly that their speculative invoice must be cancelled

Thank you for your attention
Yours faithfully,

- - -

Not sure if the 2015 changes to POPLA should affect this?

And presume the NTK deadline remains at 57 days from the PCN, so if that was 6/10/15, I shouldn't send my appeal until 2/12/15 (unless I get the NTK in the meantime, in which case I'll just remove point 5).

Thanks all. Much appreciated.

robonn

Just to say, thanks all - this appeal was successfully upheld on the basis that they have followed an incorrect process! Great news. All input much appreciated!

Umkomaas

robonn wrote: »

Just to say, thanks all - this appeal was successfully upheld on the basis that they have followed an incorrect process! Great news. All input much appreciated!

Are you able to elaborate specifically on the 'incorrect process' please? It might help many more in the future - we get quite a few Meteor/Railway station cases coming through the forum.