Excel PCN NTK - Now a Default CCJ

abedegno

Hi,

he keeper have been issued with a PCN by Excel Parking Services Ltd for a car park that the driver frequently park (and pays) for.

The driver normally pays using the RingGo app, however it was early in the morning (5:30am) and it wasn't working, hence the ticket.

It appears that Excel have setup the car park as operating only from 6am to 9pm on the app even though the signage indicates a 24 hour car park - as a result the app or the automated telephone service will not let you buy a ticket outside these hours.

The keeper appealed the ticket to the operator, suggesting the app and/or their setup of it was at fault and they should take it up with RingGo and not the driver or registered keeper. the driver was not identified in the appeal. As expected they rejected the appeal.

I am now attempting an IAS appeal - I know the advice says don't bother unless there there are unusual circumstances which my case might make it worthwhile:
- Failure of the offered payment mechanism using RingGo due to operator error.
- Clearly non-IPC compliant entrance signage.
- There is also no planning permission in place for the car park, with the operator failing to renew their application in 2014 and conditions of approval requiring all signage/kiosks be removed and car park discontinued from use.
- The car park has recently relocated within the same area of private land, similarly planning permission has been applied for conditionally approved with restrictions on lighting, screening that need to be discharged and implemented before the car park is brought into use.

I appreciate thoughts and comments on this?

Thanks

Abe

Quentin

As you will have read, whtever you say will inevitably result in a rejection.


So it's your call.


If you decide to appeal, take care not to reveal who was driving!

Fruitcake

As above, IAS appeals are a kangaroo court, and a loss to you may make the scammers want to try court with their "independent" "win" under their belts. You would then have the bother of court.

If you do decide to do a second stage appeal, one of your appeal points would be frustration of contract.

abedegno

I've not named the driver, but Excel are trying to claim under POFA 2012 in my instance, which appears to be a change of tact for them.

Below is the NTK they sent me, it doesn't explicitly mention POFA but it does say they reserve the right to claim from the keeper. I believe POFA compliance doesn't require explicit mention so may be compliant:

I would post links to redacted copies of the NTK but I don't appear to be able yet.

abedegno

The following forms the basis of my IAS appeal:

1. Predatory Tactics have been employed as per Schedule 14 of the IPC Code of Practice (COP), specifically:
a. Signage indicates a 24-hour car park (image: Brewery Street Car Park Entrance) and cashless payment is available, yet Excel’s listing on the RingGo cashless payment website advises opening from 6:00 to 21:00(image: myringgo-parkinglocator.png). As a result of this discrepancy attempts to make payment via RingGo to fail (image: RingGo Payment Failure).
b. This discrepancy in opening times is misleading and lures drivers into using a carpark where cashless payment is not possible as the RingGo mobile application or telephone service will not permit payment to be made outside of the configured opening hours. As a result, drivers unwittingly incur incurring parking charges.
c. The inability to make payment creates an inordinate delay in the performance of the contract rendering contractual obligations impossible.
2. Site Signage not compliant with Schedule 1 of the COP:
a. The attached image of the site entrance signage (image: Brewery Street Car Park Entrance) fails to comply with the requirements set out for entrance signs points a, b or c:
i. It does not make it clear the motorist is entering private land as this is not mentioned anywhere on the signage.
ii. It does not refer the motorist to a full set of terms and conditions
iii. It does not clearly identify the operator as it does not display the full company name, registration number and jurisdiction the company is registered in.
b. The sign fails to comply with the ‘Contrast and Illumination’ section of Schedule 1; specifically, it is inadequately lit (in fact, not lit at all). At the time of entrance to the car park 6:30am, there is a lack of adequate lighting anywhere within the car park area (image: Brewery Street Car Park 0630) , as a result no legal contract can be formed.
3. Local byelaws have not been complied with as required under Schedule 9 of the IPC Code of Practice (COP), specifically:
a. Planning permission for the carpark was approved on 20 June 2011 for 3 years only and has expired without renewal (document: CHE_11_00144_FUL – Decision)
b. Planning approval for the carpark to be relocated to the North of the land was only conditionally approved (document: CHE_16_00188_FUL-DECISION_NOTICE), and numerous conditions remain unmet including:
i. Planning condition 9 – “The temporary car park shall not be brought into use until a detailed lighting strategy and details of the proposed knee rail have been submitted to and approved in writing by the LPA. Such approved measures shall be implemented in full.”, has not been approved or the measures fully implemented (document: Planning Ref CHE/17/00028/DOC - Discharge of Condition 9)
ii. Planning Condition 13 – “Prior to the use of the temporary car park, details shall be submitted to the Local Planning Authority for written approval indicating a screening barrier between the site and the A61 to shield vehicles and other lighting within the application site from the adjacent A61 dual carriageway. Details will also be required indicating the proposed layout of the car park and its access with particular regards to pedestrian provision”, has not been submitted, approved or implemented (image: Brewery Street Car Park Screening)

abedegno

I've got a Prima Facie response from Excel below:

The Operator Reported That...
The appellant was the keeper.
The operator is seeking keeper liability in accordance with PoFA..
The Notice to Keeper (Non-ANPR) was sent on 14/03/2017.
The ticket was issued on 14/03/2017.
The charge is based in Contract.

The Operator Made The Following Comments...
1. The Brewery Street Car Park is private land which motorists are allowed to enter to park their vehicles, provided that they abide by any displayed conditions of parking.

2. There are 11 signs on site, including 4 Information Boards (1250mm x 660mm), 2 Entrance Boards (1500mm x 795mm), 1 Entrance/Welcome Board (2000mm x 2000mm) and 2 Tariff Boards (1200mm x 1000mm) situated at key locations throughout the area, which states: “This is a Pay & Display Car Park” and “A valid Pay & Display ticket must be displayed inside the front windscreen of your vehicle with the date and time clearly visible at all times”.

3. Site photographs supplied show that the signage can be observed at the entrance and throughout the car park.

4. The Notice to Keeper (NTK) sent to the appellant states: “If, after 28 days of the issue date of this Parking Charge Notice, payment has not been paid in full or we are not provided with the full name and a current serviceable address of the driver of the vehicle, we have the right to recover any unpaid parking charges from the Registered Keeper. This warning is given under Paragraph 8 (2) (f) of Schedule 4 of the Protection of Freedoms Act 2012 and is subject to our compliance with the applicable conditions under Schedule 4 of that Act”.

5. Under Schedule 4 of the Protection of Freedoms Act 2012; by failing to provide those details, the appellant became liable for the Parking Charge Notice.

6. On this site motorists are permitted to use RingGo as an alternative method of making payment for their parking. A motorist sets up an account or uses a mobile phone to send an SMS text message or uses an app to use their Ringo account. Once payment for parking is made, an acknowledgement is received by the motorist confirming that their parking has been authorised and also gives details of the parking duration paid for and its expiry time. Prior to issuing a parking charge notice on RingGo sites, the Parking attendant looks up the vehicle registration number on a handheld, to check if payment has been made with RingGo. In the absence of a payment, the motorist would be required to purchase a P&D ticket from the ticket machine.

7. Enforcement for parking contraventions at this car site is undertaken by patrol officers who use a Hand Held Terminal (HHT) to record details of any vehicle and its registration number, which may be parked in contravention of the advertised Terms & Conditions. Those images and other relevant information are uploaded in real time to a secure portal, where the information is reviewed. No formal Parking Charge Notice is affixed to the vehicle; instead, a formal Notice is subsequently issued by post, this practice falls in line with the process and procedures as per site management using ANPR technology.

8. However, as a means of forewarning the driver that a parking contravention may have been identified, an MPC (MyParkingCharge) card is affixed to the vehicle in order to prevent a possible re-occurrence of a parking contravention, prior to a formal notice being received. That card is deemed to be "A Call to Action", and allows the driver the opportunity to view details of the parking incident on the MyParkingCharge gateway and, as appropriate, supply details, make an appeal, or make payment.

9. A series of images were taken showing the location of the vehicle in relation to the signs on site, they are time and date stamped and show the appellant’s vehicle parked adjacent to at least one of the warning signs. The MPC card was affixed to the vehicle directing the driver to the MyParkingCharge gateway.

10. The Patrol Officer (PO) observed the appellants vehicle for a period of 15 minutes before issuing the MPC card. When digitally recording the contravention the PO noted “parked without pay and display ticket on display”

11. Contravention photographs supplied, which are time and date stamped, show the appellant’s vehicle parked as observed by our PO.

12. An appeal from the Registered Keeper XXX YYY was received on 28 March 2017. He failed to confirm to Excel Parking Services Ltd who the driver of the vehicle was on the day in question or supply a current address for that driver.

13. The Parking Charge Notice issued to the appellant clearly states; “Please be warned: that if, after the period of 28 days beginning with the day after the Issue date of this Notice, the amount of the unpaid Parking Charge specified in this Notice has not been paid in full and we do not know both the name of the driver and a current address for service for the driver, we will have the right to recover from the registered keeper, any unpaid balance of the Parking Charge”

14. By failing to provide those details, the appellant became liable for the Parking Charge as per Schedule 4 of the Protection of Freedoms Act 2012.

15. In their appeal, the appellant has stated they attempted to purchase a RingGo virtual ticket but received a message stating “Sorry, this zone is currently closed”

16. Please note that the RingGo application is third-party software for which we are not responsible. If, for whatever reason, the appellant was unable to purchase a RingGo ticket they had the option of purchasing a paper P&D ticket from one of the P&D machines onsite: an option which the appellant failed to utilise.

17. In their appeal to the IAS, the appellant questions the signage onsite.

18. The adjudicator will note that this car park and its signage have been audited by the International Parking Community and that the signage complies with the IPC Code of Practice. The site photographs supplied show that the car park and the signage are adequately illuminated during the hours of darkness. If the appellant arrived during the hours it is reasonable to assume that they would have been using headlights which would have further illuminated the signage. Furthermore, we contend that the fact that the appellant attempted to purchase a RingGo virtual ticket demonstrated awareness on the part of the appellant of the Terms and Conditions displayed on the signage in place.

19. This car park is private land and the adjudicator will note that the appellant’s comments, in their appeal to the IAS, regarding planning permission for the possible relocation of the car park and local bye-laws are not relevant to this appeal.

20. A helpline telephone is displayed on all signage for any motorist who has any queries or who is experiencing difficulty; this was not utilised by the appellant.

21. When entering this private land it is solely the responsibility of the motorist to fully comply with the Terms and Conditions displayed. In the circumstances the appellant’s options were to purchase a paper P&D ticket, to leave the car park and seek alternative parking or to accept liability for a PCN.

22. The appellant became liable for the Parking Charge Notice issued by parking without displaying a valid ticket/permit as per the Terms and Conditions displayed.

abedegno

I might be trying too hard for the IAS appeal, but I'm inclined to submit the following response:

1.) The operator has failed to show evidence of signs on the material date (7/3/2017). The attached overhead diagram "brewery st.pdf” is not correct as the car park has relocated and the attached diagram shows the layout prior to relocation.
2) The attached photographs “Brewery Street Site Photographs.pdf” have been taken of signs by standing directly in front of them in broad daylight and do not show that the car park and the signage are adequately illuminated during the hours of darkness as the operator asserts. The area photographs on pages 6, 7, 8 and 9 of the document "Brewery Street Site Photographs.pdf” serve to reinforce the appellant’s assertion that site signage is poor and cannot be observed throughout the site.
3) The operator has failed to demonstrate that the signage complies with the ‘Contrast and Illumination’ section of Schedule 1 of the IPC COP. The operator’s assumption that signs would be illuminated with headlights is not reasonable and the IPC COP clearly states that “you (the operator) will need to ensure all signs are readable”. As a result no legal contract can be formed.
4) The operator’s comment that the appellant attempted to purchase a RingGo virtual ticket is not correct as the appellant has not identified themselves as the driver. An attempt to purchase a virtual ticket using RingGo does not suggest that the driver has full awareness or contractual agreement of the terms and conditions asserted by the operator in their site signage as the RingGo application enables a driver to locate, navigate to and pay a car parking tariff without ever having terms and conditions presented to them. Site signage, as explained previously and demonstrated from the attached photographs is both poor and non-IPC COP compliant.
5) The operator makes cashless payment possible using the RingGo service, therefore negating the need to carry coinage for the operator’s P&D machines. The operator asserts that P&D machines should be used instead but evidence that the P&D machines were also functioning at this time has not been provided.
6) The operator asserts that the RingGo application is third-party software for which they are not responsible, however the operator is directly responsible for the correct definition and listing of the car park in question with the RingGo application. The failure of the RingGo service, as evidenced in the attachment 'myringgo-parkinglocator.png’, is because the operator has failed to correctly list the car park in question with the opening hours being between 6am and 9pm and not 24 hours as indicated at the entrance signage. Further evidence discrepancy in opening times and unclear and confusing signage is demonstrated in attached ‘entrace-laminate-sign.jpg’, a poorly hung laminated A4 paper sign suggesting the entrance gates are locked between the hours of 6am and 10pm. This signage also contravenes Schedule 1 of the IPC COP that requires “Signs must be professionally made”. Without visible, correct and IPC COP compliant signage in place the validity of the parking charge cannot be upheld. The failure of a payment method creates a frustration of contract as the inability to make payment creates an inordinate delay in the performance of the contract rendering contractual obligations impossible.
7) This discrepancy in opening times and when gates are locked or unlocked is misleading and lures drivers into using a carpark where cashless payment is not possible as the RingGo mobile application or telephone service will not permit payment to be made outside of the configured opening hours. As a result, drivers unwittingly incur incurring parking charges which constitutes Predatory Tactics as outlined in schedule 14 of the IPC COP. Also note that despite the operator being made aware of their error as of 28 April 2017 it has not yet been corrected.
8) The operator asserts that a helpline number is displayed on all signage and should have been called, however both the RingGo and Excel Parking helpline numbers when called at 5:30am instruct the caller to ring back during office hours.
9) The site photographs provided by the operator fail to include the main entrance sign "Brewery Street Car Park Entrance.jpg”and only includes signage within the site. The operator’s assertion that the car park and its signage have been audited by the International Parking Community and that the signage complies with the IPC Code of Practice cannot be correct as the main entrance sign, photograph “Brewery Street Car Park Entrance.jpg” and operator supplied printer proof “Brewery Entrance Board.pdf”, clearly fail to comply with the requirements set out in schedule 1 of the IPC COP by failing to satisfy point a, b and c as described previously:
a. It does not make it clear the motorist is entering private land as this is not mentioned anywhere on the signage.
b. It does not refer the motorist to a full set of terms and conditions
c. It does not clearly identify the operator
10) The operator asserts that the images provided "Contravention Photographs.pdf”show the appellant’s vehicle parked adjacent to at least one of the warning signs. The photographs fail to provide evidence of that assertion.
11) The operator asserts that planning permission for the possible relocation of the car park is not relevant to this appeal. This is not correct as legal operation is material to performance of the alleged contract and contravenes Part B.13 of the IPC COP which states that “You (the operator) agree to ensure that all your operators, servants or agents maintain a professional standard of behaviour when carrying out their duties and comply with the rule of law at all times”
a.The operator asserts that the planning permission is for a possible relocation of the car park, but as evidenced by the operator’s photographs and historical overhead diagram 'brewery st.pdf’ this ‘possible’ relocation has already been completed.
b. An offence has been committed as planning laws have not been complied with and the planning conditions which must be satisfied and discharged in full before legally the car park and be brought into use have not been met.
c. The original planning permission for the carpark was approved on 20 June 2011 for 3 years only and has expired without renewal. Condition 1 of this approval required that 'The continued car park use hereby permitted shall be discontinued and the signage and attendant’s kiosk removed on or before 3 years from the date of this grant of planning permission.’. This condition has not been satisfied and an offence has been committed as signage is still present on site as demonstrated by the operator’s photographs.
d) As a result of the statements a, b and c above, if there was a contract between the operator and the appellant it was illegal at its formation because it was incapable of being created without an illegal act (the operation of an un-consented car park and signage stating the terms and conditions relied on by the operator). Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be accepted.
12) The operator in their supplied documents has not provided evidence of authority from the land owner necessary to establish themselves as the creditor.

Umkomaas

This is looking more like a defence at court. History tells us that any appeal to the IAS is likely to fail unless absolute, irrefutable evidence is produced - like 'I wasn't the driver on the day, and here are my flight tickets proving that I was in Timbuktu'.

Arguing the finer points of contract law, PoFA, planning consent and the like are much better made in front of a judge. Again history suggests that when appeals are made to IAS, those potentially ripe for court pursuit are passed over to Gladstones to progress.

It's not a great start to have already exposed potentially all of your defence points so far in advance and before they have a chance to make (or foul up) their case to you.

My take on things.

abedegno

Hi,

Fair point, I may probably end up in court if I fail so want to keep some of those points better discussed in court as reserve.

Thanks
Abe

abedegno

Hi,

So as expected my IAS appeal was rejected on the 15th June. I have had no further correspondence from Excel until today when they sent me a notice of intended court proceedings attached below.

I'm unsure what, if anything, I should write as a response now. I should add that during the appeals I continued to not name the driver.

Thanks

Abe

http://imgur.com/a/FN0d5

Quentin

Lots of advice in the newbies FAQ thread near the top of the forum. See #2 there