MET Parking - McDonalds City Road London

[thekindone]

Hi All,

Received a PCN by Met Parking on March 18th 2015 at the McDonalds on City Road.

It seems like it was issued exactly after the car was left by the driver on the grounds that the driver was not on the premises at the time of the survey. This is strictly true but the driver could have gone to the shop next door and got back to the car only to find the PCN attached to the windscreen. Looking up on other sites related to dealing with PCN issued by Private companies the PCN was ignored until a letter was sent and which was received.

The letter was sent on April 17th 2015.

Could not deal with this before I went on holiday and came back to find another Reminder notice (issued on May 1st) saying that the parking is overdue and that the Independent appeals service POPLA is no longer available demanding to pay the full amount of £100 within 7 days (which have already passed as I got back only last night May 11th).

I don't understand how they are saying that POPLA is no longer available as in the previous letter they were saying that "All appeals must be received within 28 days from the date of our initial correspondence" which I assume they mean when they sent the letter to the home address (April 17th).

Can I appeal on the grounds that:

1. the charges are penal and not a genuine pre-estimate of loss.
2. the PCN was issued without really checking if the driver would return to the car

Should I also ask them why they are saying that the right to appeal to POPLA is no longer available since their first letter to me was on April 17th?

Thanks for your consideration

[mystery1]

Re: MET Parking - McDonalds City Road London

Do you have a notice to driver (stuck on the window) or a notice to keeper (through the letterbox) ?

M1

[thekindone]

Re: MET Parking - McDonalds City Road London

Hi M1

I have both. Notice to driver (stuck on windscreen) was issued on March 18th which I ignored until I got through letterbox notice to keeper issued on April 17.

Thanks

[thekindone]

Re: MET Parking - McDonalds City Road London

Do you need images of PCNs and/or signs? If I send images of PCNs is it enough to delete Reg number, name, postal address and PCN number? Should I delete anything else?

Thanks again

[mystery1]

Re: MET Parking - McDonalds City Road London

Do you need images of PCNs and/or signs? If I send images of PCNs is it enough to delete Reg number, name, postal address and PCN number? Should I delete anything else?

Thanks again

That'd be perfect. It sounds like you should have 1/2 days left to appeal so be quick :okay:

M1

[thekindone]

Re: MET Parking - McDonalds City Road London

That'd be perfect. It sounds like you should have 1/2 days left to appeal so be quick :okay:

M1

here they are. Waiting for friend to take picture of the sign (is this necessary)?

[mystery1]

Re: MET Parking - McDonalds City Road London

Not strictly required but might be helpful either now or in the future depending on what it says.

For the moment appeal to Met.

Dear Sirs,

I,as registered keeper, wish to invoke your appeals procedure. The driver, whom i am under no statutory obligation to name, was a genuine customer and did not see any signs.

Your notice to keeper is non compliant with paragraph 8 of the protection of freedoms act 2012 schedule 4 in thta it does not contain many of the required information.

Please cancel the ticket or contact the driver.

Yours etc

M1

[thekindone]

Re: MET Parking - McDonalds City Road London

Not strictly required but might be helpful either now or in the future depending on what it says.

For the moment appeal to Met.

Dear Sirs,

I,as registered keeper, wish to invoke your appeals procedure. The driver, whom i am under no statutory obligation to name, was a genuine customer and did not see any signs.

Your notice to keeper is non compliant with paragraph 8 of the protection of freedoms act 2012 schedule 4 in thta it does not contain many of the required information.

Please cancel the ticket or contact the driver.

Yours etc

M1

Thanks a lot. It's fine to do it online on their website. Right?

- - - Updated - - -

It says though on their website that "I did not see any sign" is not an acceptable representation

[mystery1]

Re: MET Parking - McDonalds City Road London

Probably says somewhere that they're honest too. That'd be wrong too.

M1

[thekindone]

Re: MET Parking - McDonalds City Road London

Probably says somewhere that they're honest too. That'd be wrong too.

M1

Indeed

I submitted the appeal yesterday.

Waiting now to hear from them.

Thanks for all the help so far mystery1

[thekindone]

Re: MET Parking - McDonalds City Road London

Indeed

I submitted the appeal yesterday.

Waiting now to hear from them.

Thanks for all the help so far mystery1

Got the reply today and, as expected, they reject the appeal for the following reason:

"The terms and conditions of use of the car park are clearly stated on signs prominently displayed around the car park. These include that this car park is for use of McDonald's customers while they are on the premises only.

A site survey was conducted whilst your vehicle was on the premises and as there was no one to take accountability for your vehicle a parking charge notice was issued.

We can confirm, therefore, that the charge was issued correctly and we are upholding it. To avoid future parking charge notices, please ensure drivers always comply with the terms and conditions of parking and any restrictions that are in place when they park your car.

this decision, which has been based on the facts of the case and takes into account our consideration of any mitigating circumstances, is our final decision."

and then presents 3 options:

1. Give name and address of the driver
2. Pay or ask driver to pay £100
3. Appeal to POPLA
4. Do nothing and they will recover monies via debt recovery agency..

Any advice?

Thanks

[mystery1]

Re: MET Parking - McDonalds City Road London

Appeal to popla citing no keeper liability and win

I'll sort that this weekend.

M1

[thekindone]

Re: MET Parking - McDonalds City Road London

Appeal to popla citing no keeper liability and win

I'll sort that this weekend.

M1

Thanks mystery1. So shall I wait for more details here?

[mystery1]

Re: MET Parking - McDonalds City Road London

:okay:

M1

[mystery1]

Re: MET Parking - McDonalds City Road London

I wish to appeal this parking charge on the following grounds.




1. The charges are penalties and not a contractual charge, breach of contract or trespass. They are not a genuine pre estimate of loss either.




2. In order to form a contract the signs need to be clear so that they must be seen by an average person. They were not. There was no breach of contract.




3. MET parking do not hold sufficient interest in the land to offer a motorist a contract to park. They have no locus standi.




4. MET parking have failed to adhere to the BPA code of practice.




5. Unreliable, unsynchronised and non-compliant ANPR system.


6. Keeper liability.




1.The charges are penalties.




The charges are represented as a failure to pay which is disputed. The driver on the day had difficulty in getting in and out of the car park due to traffic. According to the BPA code "If the parking charge that the driver is being asked to pay is for a act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance"




£100 is clearly not proportionate to a stay in a car park in which the vehicle was allowed to park for free. Neither is it commercially justified because it would make no sense and in any event in was only ruled so in Parking Eye v Beavis in a car park where the operator paid £1000 per week, a case which in any event is being appealed to the supreme court. It is also noted that the judge in Beavis did rule it was a penalty although in that particular car park it was commercially justified due to the £1000 per week paid by the operator. The longer a driver stays in the various shops then the more profit is made. £100 is clearly a penalty. The £100 is not a genuine pre estimate of loss and is extravagant and unconscionable. It is a penalty. It is not an attempt to claim liquidated damages which should be a genuine pre estimate of loss. £100 cannot be so as the figures quoted include business costs.




I require MET parking to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. MET parking cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.




According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner allows free parking for shoppers and several hundred pounds were spent then there is no loss. The Office of Fair Trading has stated 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.''




When one looks at the sign one sees that non blue badge holders must display, face up, a blue badge to park in disabled bays and are charged £100 if they do not display then it becomes even clearer that £100 is to deter people from misusing disabled bays and that £100 is an arbitrary amount charged for all transgressions and as such is an unenforceable penalty.












2. Unclear and non-compliant signage, forming no contract with drivers.




I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a carpark where they could have paid nothing. It was not a genuine attempt to contract for unlimited parking in return for £100.




As the PCN had no VAT content to it, it cannot be for a service. It must therefore be a penalty.



There is no definition of the site on the notices and the charge that the driver left the site is ambiguous as the driver had no way of knowing where the boundary is.




3.. Contract with landowner - no locus standi




MET parking do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that MET parking has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Parking eye to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.








In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.








So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between MET parking and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): http://nebula.wsimg.com/0ce354ec6697...&alloworigin=1






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.








4. Failure to adhere to the BPA code of practice.




The signs do not meet the minimum requirements in part 18. They were not clear and intelligible as required.




The BPA Code of Practice states under appendix B, entrance signage:








“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”




For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not. Upon returning to the car park after receiving this unjustified 'charge notice' to check the alleged terms at a later date, I had to get out of my car to even read the larger font on the signs, and the smaller font was only readable when standing next to a sign. They were also very brightly coloured but too busy, confusing and unclear. Everything except the 'welcome' heading is too unreadable to be compliant (photo attached).












When with reference to the BCP Code of Practice, it actually states:




"There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision"




5. ANPR ACCURACY




This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted,calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images.This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator inParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.








So, in addition to showing their maintenance records, I require the Operator in this case to show evidence to rebut this point: I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system and I put this Operator to strict proof to the contrary.




6. Keeper liability.


The protection of freedoms act 2012 schedule 4 allows the opportunity for parking companies liable for the actions of the driver but only if full compliance is achieved. In the case of an ANPR situation compliance with section 9 is required.


Right to claim unpaid parking charges from keeper of vehicle




4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met ....


6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—

a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8


7(1)A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(b)inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose (including the means by which it was brought to the attention of drivers) and the other facts that made those charges payable;
(c)inform the driver that the parking charges relating to the specified period of parking have not been paid in full and specify the total amount of the unpaid parking charges relating to that period, as at a time which is—
(i)specified in the notice; and
(ii)no later than the time specified under paragraph (f);
(d)inform the driver of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(e)identify the creditor and specify how and to whom payment may be made;
(f)specify the time when the notice is given and the date.
(3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices each specifying different parts of a single period of parking).
(4)The notice must be given—
(a)before the vehicle is removed from the relevant land after the end of the period of parking to which the notice relates, and
(b)while the vehicle is stationary,by affixing it to the vehicle or by handing it to a person appearing to be in charge of the vehicle.
(5)In sub-paragraph (2)(d) the reference to arrangements for the resolution of disputes or complaints includes—
(a)any procedures offered by the creditor for dealing informally with representations by the driver about the notice or any matter contained in it; and
(b)any arrangements under which disputes or complaints (however described) may be referred by the driver to independent adjudication or arbitration.


There is no period of parking mentioned on the notice to driver, merely a 1 minute observation. The BPA code of practice states

"13 Grace periods13.1 Your approach to parking management must allow a
driver who enters your car park but decides not to park,
to leave the car park within a reasonable period without
having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’
in which to decide if they are going to stay or go. If the
driver is on your land without permission you should still
allow them a grace period to read your signs and leave
before you take enforcement action.
13.3 You should be prepared to tell us the specific grace period
at a site if our compliance team or our agents ask what it is.
13.4 You should allow the driver a reasonable period to leave
the private car park after the parking contract has ended,
before you take enforcement action. "

Less than 1 minute would never be reasonable in any language.

The creditor is not specified.

8(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);
(d)if the unpaid parking charges specified in that notice to driver as required by paragraph 7(2)(c) have been paid in part, specify the amount that remains unpaid, as at a time which is—
(i)specified in the notice to keeper, and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(i)specify the date on which the notice is sent (if it is sent by post) or given (in any other case).
(3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).
(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
(7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.
(8)In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—
(a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and
(b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.






The notice to keeper does not specify a period of parking. The notice merely indicates a time of entry in to the car park and an exit time from the car park. The BPA code of practice makes reference to the fact that entry is not parking and dictates a grace period must be allowed partly for this very reason. As the keeper is not the person who was driving the keeper cannot know what the period of parking is and the legislation dictates it must be specified, presumably for that very reason. In Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998) it was held that the specified information required to be provided by legislation should indeed be accurate and that the failure made the relevant notice invalid. It was also the deciding factor in Parking Eye v Mrs X Case No: 3JD08399 IN THE ALTRINCHAM COUNTY COURT.
http://nebula.wsimg.com/c289944f81b4...&alloworigin=1


Sections F has not been complied with at all. Other sections are not totally complied with either.



As they have failed to meet the statutory requirements to hold the keeper liable and have no valid contract with the driver as well as other faults above, the PCN should be cancelled.


M1