Premier park - WON

[kms1987]

28 days.

Can you scan up the letter please minus your name, address and reg number obviously ?

I wouldn't be contemplating paying. The discount is a fallacy and is designed to add pressure to people in order to encourage payment.

I'm confident you won't need to pay anything at all.

M1

Hi M1,

I am fairly certain I may have been a bit foolish in my reply, and was hoping you could offer a draft or some guidance with the attached? I was parked in the space reserved for my flat, private property, and I do have a valid residence permit, but it had slid off of the dash. I have attached all correspondence between us.

Kind regards,

Kyle

[mystery1]

Re: Parking Charge Notice PARKING EYE

No worries. 18 days to lodge apopla appeal and they have extra sins in not identifying the creditor as you pointed out. I'll get to it soon

M1

[kms1987]

Re: Parking Charge Notice PARKING EYE

No worries. 18 days to lodge apopla appeal and they have extra sins in not identifying the creditor as you pointed out. I'll get to it soon

M1

Thank you so much, really appreciate the help!

[kms1987]

Re: Parking Charge Notice PARKING EYE

No worries. 18 days to lodge apopla appeal and they have extra sins in not identifying the creditor as you pointed out. I'll get to it soon

M1

Thank you so much, really appreciate the help! Here is a pic of the sign in case it helps

[mystery1]

Re: Premier park

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




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




5. Premier park have failed to meet the conditions applicable to apply keeper liability as prescribed in the Protection of freedoms act 2012 schedule 4.






1.The charges are penalties.




The charges are represented as a breach of contract. Whilst it is disputed that a contract was entered into (see point 2) according to the BPA code "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 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 a penalty. It was not an offer to park without a permit. Neither is it commercially justified because the driver had a permit so there was no intial loss. As this is clearly a trespass scenario, although not described as such, the charges in law need to be a genuine pre estimate of loss.




I require Premier park to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Premier park 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 does not impose a parking fee for the area in question, there is no loss to Premier park nor the landowner. 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.''




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




The driver did not see any signs at the site. 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 free car park - and therefore I contend the elements of a contract were conspicuous by their absence.




3.. Contract with landowner - no locus standi
Premier park do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that Premier park 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 Premier park 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. It is to be noted that under the terms of tenancy the tenant owns the rights to the space.








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 Premier park 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/71a4eb1b5de2...essKeyId=4CB8F 2392A09CF228A46&disposition=0&alloworigin=1


In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'


I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. Premier park cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.


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.


5. Protection of freedoms act 2012 schedule 4.

The creditor has not been clearly identified amongst other failures to comply with PoFA 2012 schedule 4.




M1

[kms1987]

Re: Premier park

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


M1

Thank you M1, I'll have that with them when I'm back at the office tomorrow. Should I attach any of the pics/doc I have put up as evidence, or just the letter on its own?

Warm regards,

Kyle

[mystery1]

Re: Premier park

You can but i'd wait for their evidence pack before you submit evidence, other than the appeal itself (obviously), to see what they send in as you don't want to be supplying something they forget as if they don't refute what you say, they lose.

M1

[kms1987]

Re: Premier park

I have had a response yesterday advising me that the appeal had been allowed, and I have pasted the decision below.

Thanks again for your help M1!

Regards,

Kyle

"Reasons for the Assessor’s Determination
The appellant has made various representations; I have not dealt with them all as I am allowing this appeal on the following ground.
It is the appellant’s case that the amount of the parking charge notice does not represent a genuine pre-estimate of loss.
It is clear that the operator has had the opportunity to consider the appellant’s representations. In response the operator has stated that they will not be submitting any evidence in relation to this appeal.
Considering carefully all the evidence before me, I find that as the appellant’s case is that the amount of the parking charge does not represent a genuine pre-estimate of loss, the burden shifts to the operator to prove otherwise. I find that the operator has not discharged this burden as they have not submitted any evidence. Therefore, I have no option but to allow this appeal.
Accordingly, this appeal must be allowed."