parking on private land/Wilkinsons

[McGinty]

I received a parking ticket 27th feb this year for parking on private land and I made enquiries through another thread on how to handle it and was given the necessary letter to send to the issuers-forgot what this letter was called and cannot trace it through the thread so I have started a fresh thread. I received a reply today and would like a little help in dealing with it please. I have posted the ticket below and also the reply letter. Any help is greatly appreciated-Mc

[ostell]

Re: paring on private land/Wilkinsons

Write back to tell them that you have already appealed to them as the registerred and require a POPLA code by return or cancel the charge.

[mystery1]

Re: parking on private land/Wilkinsons

Dear Sirs,

Thank you for your letter dated xxxxxx the contents of which are noted. I especially note that you state, and further imply, that as registered keeper i have nothing to do with this matter. I refer you to the BPA code of practice particularly 22.1 which states "22.1 Under the Code you must have procedures for dealing fairly, efficiently and promptly with complaints, challenges or appeals. The procedures must give drivers and keepers the chance to challenge a parking charge notice."

As you can see as the keeper you are duty bound to consider my appeal. I can only surmise that you either do not know, and hence follow, the code of practice to which you say you subscribe or you are deliberately trying to deceive me. Given that you insinuate that my only options are the 3 you have listed i am inclined to say the latter.

Given that you and I both know that a keeper can appeal, as I pointed out above, and that i have no further information which i wish to provide i suggest that you uphold my appeal and cancel the charge or refuse my appeal and supply a popla code. This is in line with rule 22.4 of the code of practice in case you do not know that rule either.

Yours etc

M1

[McGinty]

Re: parking on private land/Wilkinsons

I received a parking ticket 27th feb this year for parking on private land and I made enquiries through another thread on how to handle it and was given the necessary letter to send to the issuers-forgot what this letter was called and cannot trace it through the thread so I have started a fresh thread. I received a reply today and would like a little help in dealing with it please. I have posted the ticket below and also the reply letter. Any help is greatly appreciated-Mc

Thank you both-ostel and mystery1 and I shall send a letter by return along the lines of the template that mystery1 has suggested. Mc

[McGinty]

Re: parking on private land/Wilkinsons

Received this yesterday-spinning it out!

[McGinty]

Re: parking on private land/Wilkinsons

Just asking for my daughter-she was caught speeding twice in the same day- 59mph and the other was 63 mph in a 50 zone-is it worth doing anything with this or just take the consequences?
The paperwork says it was a manned speed control unit which I presume was a van parked up for this purpose.

[mystery1]

Re: parking on private land/Wilkinsons

Well you could check the traffic regulation order with the council and the signs on the road for defects.

Otherwise it'll be 1 course and 1 3 points & £100.

M1

[McGinty]

Re: parking on private land/Wilkinsons

Thanks M1. I will get her to check the signage initially. Anything in particular she should look for? It was mobile units that clocked her. Do you know if roads where the police use this type of unit need to have speed signs on them? The reason I ask this is that I had a speeding ticket about 4 years ago on a road that did not have any speed signs. It is in 30mph zone in Jarrow and the police now do this speed checking on a regular basis there but there are still no signage saying there are speed cameras on there. Mc

[mystery1]

Re: parking on private land/Wilkinsons

No speed camera warnings required. Used to in ACPO guidance but since that was never law a defect didn't matter.

http://www.abd.org.uk/speed_limit_signs.htm

M1

[McGinty]

Re: parking on private land/Wilkinsons

Ref my parking in Wilkinsons car park-I received the uploaded a couple of days ago and am looking for advice on the best way forward now please-McGinty

[mystery1]

Re: parking on private land/Wilkinsons

Dear Sir/Madam,


I appeal against the decision of VCS because they have failed to follow the BPA code of practice and attempted to impose a penalty charge for either breach of contract or trespass.

The appeal by me was received by VCS on April 9th. The decision was dated 14th May 2014 and sent by post thus the interpretation act say it was deemed served on 16/5/14. This is 37 days and the 35 day deadline could only have been achieved if the decision was dlivered by hand on 14/5/14 which it was not. The claimant falls foul of the BPA code of practice 22.8 which requires a decision take no more than 35 days unless certain protocols are used which they were not.

The operator does not appear to own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, The operator has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

I require the operator to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.

Contracts are complicated things, so a witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original, showing the points above, is the only acceptable item as evidence that a contract exists and authorises the Operator the right, under contract, to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.

I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

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 stated, "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.

The Operator also make reference in their appeal refusal of (date) to “seek to recover the monies owed to us” and makes no reference to the Landlord at all.

7.1 of the BPA code of practice makes it a requirement that VCS either own the land, or have the written authorisation of the land owner to enable them to operate on the land. I, as registered keeper, put VCS to strict proof that a valid contract exists that enables them to act in this manner on behalf of the landowner. It is not an onerus task to produce the contract as section 8.1 of the code means it has to be available at all times.


The BPA Code of Practice indicates at paragraph 13.4 that the Respondent should, “allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.” The signage in the car park provides no indication of the period of time it allows and this is unreasonable, especially as VCS rely on pictures taken of a vehicle at first arrival and then when leaving (not showing any evidence at all of actual parking time). So, there is no evidence that the respondent can produce to indicate that my vehicle was parked for more than the arbitrary time limit they are relying upon, and no breach of contract by the driver can be demonstrated by their evidence at all. On that basis the sum claimed fails to meet the standards set out in paragraph 19 of the BPA Code of Practice.


19.5 of the code of practice states, “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,”

There was no parking charge levied, the car park is “free”. On the date of the claimed loss it was nearly empty and there was no physical damage caused. There can have been no loss arising from this incident. Neither can VCS lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed. See VEHICLE CONTROL SERVICESLIMITED -v- MR R IBBOTSON and A Retailer v Ms B and Ms K, Oxford County Court. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by PoPLA itself in adjucation.

I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking. This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.

UNLAWFUL PENALTY CHARGE

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

The operator is either charging for losses or it is a penalty/fine.

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CONTRACTUAL PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

The signage on site states that parking is limited to 2 hours with no return within 1 hour. There is no option to stay for longer by paying. A clear penalty.


NO CONTRACT WITH THE DRIVER

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.

UNFAIR TERMS

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."

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.”

I further contend that VCS have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence. I, as registered keeper, contend that these cameras and their operation do not meet the standards laid down in the BPA code of practice.

I would contend that this appeal should be allowed for these reasons.


That's the popla appeal i'd use

M1

[McGinty]

Re: parking on private land/Wilkinsons

Thanks M1-So shall I just ignore their communication and go ahead with the appeal? Mc

[mystery1]

Re: parking on private land/Wilkinsons

Pretty much. There is a popla code on there so just use it and they'll lose.

M1

[McGinty]

Re: parking on private land/Wilkinsons

Thanks M1-appeal now gone in-will keep you and others posted on the outcome-Mc

[bluebottle]

Re: parking on private land/Wilkinsons

I wonder how VCS will react to being reminded of the hammering they received from the Upper Tier Tribunal, Mystery?