Help with Popla appeal - WON

[mystery1]

Re: Help with Popla appeal

Well if you ignored them and they went to court they'd have a job proving who the driver was !

Anyway, if you want help producing an appeal then give as much info as you can. I'm off until Monday so have time, barring the tennis and the cup semi on Sunday

M1

[kimcatz]

Re: Help with Popla appeal

Thank you so much M1

I have almost finished my appeal. I will post here tomorrow or Friday.

Thanks

[kimcatz]

Re: Help with Popla appeal

A couple of further questions - having looked at the PCN again - I note that the two photos that they present as evidence that my car entered the car park the number plate is not shown just a blob not even a car just black back ground and a white blob - the photo of the car leaving the car park shows my car and the number plate - that said does that mean they can not prove how long I stayed there? and I may have been well within the grace period when I left?

Secondly do I change my appeal to 3rd person i.e. the driver as I have not formally stated who the driver was?

[mystery1]

Re: Help with Popla appeal

Yes. If they don't know who is driving they should be chasing the registered keeper.

M1

[kimcatz]

Re: Help with Popla appeal

Hi M1,

Please can you help me with advising how to best integrate within the appeal the areas highlighted in bold at the very bottom. I will change I to "the driver".

many thanks - and very much appreciated.

Please be aware that this notification is made on the understanding that should you read it you will be agreeing to a contract for payment of a sum of £30 with a reduction of £15 for payment within 14 days. The service offered is for general education regarding parking matters.
__________________________________________________ ____________________
Parking Appeal

Sir/Madam,

I appeal against the decision from Excel Parking, on a number of accounts and failures that deem the PCN void. Firstly, on the basis that the driver had not paid for the suggested 21 minute duration whilst parked at Snow Hill car park – which would have incurred a £1.00 parking charge (ticket) If any charge is due at all this should amount to £1.00.

On my appeal to Excel Parking the driver highlighted the vehicle in question had broken down and the I was forced to park in the first available car park off road to assist with and ensure no traffic congestion was created. The appeal further advised Excel the driver was not aware the car park was a pay and display car park, the Netto building (in front of the cark park – formerly owner’s of the car park) is bored up, the car park was virtually empty and the barrier was up, which lead to the misunderstanding together with the fact that the driver was extremely distressed with the breakdown of the driver’s vehicle, which further lead to the driver overlooking the signs, that are also highlighted as misleading further within this appeal.

Within the appeal the driver made it clear to them that there were doubts as to the reason for the charge laid against the driver. I asked them to clarify whether the ticket was due to a supposed contractual breach or for trespass. Since the remedy for rectification of the alleged misdemeanour is dependent on which circumstance it was supposed to be applied against they have failed to enlighten me as to what specific point of appeal I should follow.

Excel Parking manage the car park on behalf of Wolverhampton City Council and act as an agent for the landowner, who by his right of land ownership can only impose a payment in respect of the actual losses incurred by that party against someone who has trespassed on the premises, albeit unintentionally.

Wolverhampton City Council is not a member of the BPA thus is not bound by the BPA code of practice so the imposition of terms and conditions by Excel Parking, on behalf of Wolverhampton City Council to their own pecuniary advantage is beyond their remit.

Excel Parking cannot set a separate term or condition for the use of the car park themselves or impose any parking charges based on the BPA Code of Practice without having a separate condition within their own client contract to offer parking to visitors at a higher price. I'm assuming they have that right otherwise they would be in severe non compliance to the BPA Code of Practice which may well impact upon their continued ability to access the DVLA database for registered keeper details. However the law of contract or tort of trespass would apply in either of these cases anyway.

As stated previously the driver was not aware the car park was a pay and display car park, Excel have since informed the driver the car park is a pay and display facility, therefore the loss incurred by the landowner is a matter of the time spent in the car park without making the relevant payment. This is a quantifiable loss as can be seen on the sign which displays the actual normal parking fee. In this case the amount of the loss to the landowner is £1.00

Even if you feel that Excel Parking has a right to impose the charging structure of the BPA, I remind you that the matter of how charges should be applied is laid out clearly enough within that Code, albeit without any legislative recognition.

This says that the normal parking structure as laid out by the landowner is not covered by the Code of Practice. It must therefore mean that any further charges are for a breach of contract or for trespass on the premises. However I remind you that the BPA has no statutory basis for the application of the imposition or suggested imposition of any charge at all. Anyone can join together with a few friends and give themselves a name as a body of some sort. They can also make out a set of rules or code of conduct which can be heavily weighted in their favour. That doesn't make it an acceptable practice on which to hold to ransom members of society who fail the test of one of their rules. A quick look at the Code of Practice of the BPA finds many anomalies that would be frowned upon in any civil court, and it doesn't need a legal expert to find them either.

The ticket I received from Excel Parking had no reference to VAT shown on it. If it was an invoice for payment of a service contract, it must show VAT details on it, ie, for parking services amount owed £50 + VAT at 20% = £60. Since there is no mention of VAT it must therefore be presumed to be nil or zero rated which would be the applicable rate for a fine or penalty, which of course is non compliant to the BPA Code of Practice itself which states that the use of fine or penalty may not be used. That doesn't legitimise the use of a more convenient term though. If the amount demanded were a contractual charge then it fails the test for that based entirely upon the wording on the ticket. It MUST show the VAT details of the company in accordance with the BPA Code of Practice, and it does not, therefore cannot be a breach of an alleged contractual arrangement.

To make sense of the situation in hand, I find it necessary to consider each aspect separately. First the issue of contract, then the tort of trespass, since it was not explained which act I was being charged for.

It's my submission that this amount cannot be construed as a contractual parking breach.
To breach a contract, one must have been formed in the 1st place.
It's my submission that such a contract was not formed. At no time was it brought to my attention on any sign that I had the right to enter a contract for parking without payment of the relevant parking fee offered by the landowners, for another parking charge set quite separately by Excel Parking.

If such a contract was intended it would have made that clear. There is no offer to park at the location by payment of such a charge, and there is no description of what I get from such a contract, let alone be in a position to enter into a negotiation in order to influence the contractual terms which is also a necessary part of a contract.

If there was an offer of that sort it should have been displayed on the signs saying, more or less, "parking at any time for unlimited and unrestricted periods is £60, including use of disabled bays by non blue badge holders" for instance. It also fails in not describing the extent of the time limit. For instance would such a contract, or the supposed acceptance of it by making a payment for the parking charge notice, extend my right to subsequent periods of parking on future dates without payment of the relevant parking fee, time unlimited? Perhaps it extends the right of placing my caravan there for the year since I have paid a fee for it?

There has to be an offer and acceptance in contracts. A contract can only be made in consideration of the passing or enjoyment of goods or services. I was not offered anything in exchange for the payment imposed.

If you consider this on the basis of parking in a disabled parking bay without displaying a blue badge. If the charge was in respect of a contract, it would need to fulfil the description of contract by actually offering a driver without a blue badge the right to park in a disabled bay upon making the relevant payment. That is not the intended action though is it? Nor is there any means to accept that offer by immediate payment at the location, which is also a necessary requirement.

This is exactly the same situation as mine. I have not been offered the right to park by Excel Parking for payment of a sum of money which is different to that for normal parking. The right to parking had already been extended by the landowners.
That being an irrefutable fact, at what point would a contract to an alternative parking arrangement commence? If a contract for parking had been the true intention it would be in danger of compromising the landowner's intentions. The landowner allows parking for a fee. If the payment has been exceeded that does not mean there is no intention to make a further payment upon return to the car park to make good the shortfall.

Since life follows many complicated twists and turns, what was thought may have been an hours visit may unintentionally become 2 hours. As long as that extra time is paid for direct to the landowner by virtue of whatever payment option he has provided then the driver is fulfilling his obligations. Please also note that on entry to the car park,especially where it is a pay and display one, although that does not necessarily exclude free parking areas, the initial contract is with the landowner who makes his facility available to the driver. Any breach of the landowner's contract is quite separate to the breach of a faux contract with another party who didn't offer the initial one. The offer of a separate contract could only be classed as an attempt to undermine the original offer by the landowner.

If the driver contemplates taking up an offer to park in accordance with the Excel Parking contract, then that option should be mentioned upfront before the payment of the other fee is made so that the driver can choose whichever offer he wishes to take up. A method of making direct payment to accept that offer should be available at the location which would become the point at which the driver has considered the offer and accepted it. Without payment the offer is not accepted.

A further complication to the offer of parking by Excel Parking, if any were made at all, would be in the different amounts. Early payment or standard payment or extra for late payment cannot constitute a reasonable basis of a contract. There may be a discount for early payment in a contract and there may be a charge for late payment in accordance with the regulatory structure for that, ie an amount of statutory interest but only when the interest and any penalty charge is in regard to a commercial transaction, perhaps if the vehicle was a lorry delivering goods. Any addition which is shown to be a penalty is really not in compliance to the BPA Code of Practice since that says that the use of the word penalty must not be used and by implication made as an additional charge.

The parking charge in this instance is actually for not complying with some term or condition, ie is a penalty. It would be difficult to see how any County Court could see any different to that explanation and I would be more than happy to have them rule on that very point if needed, which would probably result in a particularly embarrassing scrutiny of a different finding by POPLA if you decide otherwise.

If you find that a contract had been formed I would expect you to could clarify what service or goods Excel Parking had offered me for the payment demanded. In fact I would insist upon knowing why Excel Parking had offered me the right to park in the first place, since that right had already been made by The Square Shopping Centre.

What Excel Parking has done instead was nothing other than imposing a penalty for non compliance to a condition of parking which may or may not have the backing of The Square Shopping Centre. It would be interesting to see how they would explain this in a county court.

Since any charge can only be to make good any financial loss to the landowner, then the amount charged is well above the amount of £1.00 so is punitive by nature which is not likely to be in accordance with the remedy for making good the landowner's loss. No other loss was incurred. In fact I asked Excel Parking to explain the reason for the charge so I could consider what the true loss would likely to have been dependent on the legal definition of the imposed charge, but never received any such explanation.
I have a right to know quite how the charge is made up. This is a basic right of contract and without suitable explanation I do not believe Excel Parking have met a sufficiently high enough standard as the principal party in the contractual application, if indeed they even had the right to make that offer and call it a contract.

My second point of consideration is for the action against the tort of trespass.

Only one party in this property has the right of action against trespass. That is The Square Shopping Centre. Trespass cannot be committed against an agent or management company. It has no landowner rights. Any civil action should be undertaken on behalf of the landowner who has been wronged and for the loss incurred.

Excel Parking has suffered no loss as they are unable to claim trespass in their own name. If they claim to be acting on behalf of their client they have not shown that to be the case since all the signs and the ticket itself tells me differently. They are taking action independently and require payment to be made to themselves. There is no mention of any involvement by their client. They are therefore unable to justify any charge at all. If they had right of occupation or were the landowner they could at least request payment of the amount of £1.00 as recompense for the trespass, however they don't, so they can't.

To give justification as to my calculation of the £1.00, beyond the actual time spent without payment, I refer you to the case of Michael Fagan who entered Buckingham Palace and visited the Queen while she was in bed. During his probably terse conversation he partook of half a bottle of wine from her bedside table. As the act of trespass had incurred the Queen no quantifiable loss worth any mention, Fagan was instead charged with the theft of the wine.
Would the outcome have been any different if the Queen had a contractual notice by her bedroom door advising that visitors without permission would be charged £300? It wouldn't be intended to be a contract to visit her for payment of £300 now would it?

The BPA code of practice is deliberately obscure on the definition of the amount to charge. In one paragraph they say that charges should be reasonable and reflect the loss incurred, then in another paragraph it suggests a charging structure. It cannot have it both ways. I am mindful that if a court was to properly assess the charges, it would come down in favour of recompense for the actual loss rather than an amount suggested by a non statutory body with the best interests of its own members in mind.

The actual wording used within the Code of Practice is as follows:
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.
Another point made in the following paragraph is: If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. Since the cost of the 2 hours parking is only £1.00 how can a charge of 100 times that be considered as non punitive or reasonable? I expect you to calculate that into your considerations.

I put it to you that the BPA “guidance” is obfuscation on a parliamentary scale. That useful bit of information makes clear: loss that you suffer, meaning the parking management company which of course has suffered no loss at all. In fact up until the discovery of the non payment Excel Parking had no financial interest in the matter at all. Apart from that there can be no pre-estimate unless the known period of overstay, or length of stay without payment is known prior to that consideration. However, it can easily be calculated following the event by reference to the parking payment that has been underpaid or missed completely. Each case will have slightly different amounts and as such no genuine pre-estimate can therefore be made. The best way to compare this is by referencing it to a bit of seaweed hanging on a fence and trying to assess the weather conditions for tomorrow. It is quite frankly absurd and completely wrong to set a range of tariffs when a GENUINE loss may be easily quantified following the event.

The suggestion that trespass should also be quantified by a pre-estimate is absurd. It must have clarity. It must be a proven amount. The BPA sets a code that has passed no legislative scrutiny but instead offers quasi legalistic explanations to enhance the income of their members.

Secondly...

I refer to the ‘Notice to Keeper’, ref Xxxxxxxxxx dated 04/03/2013 from Excel Parking and would wish to draw your attention to the following statement contained therein:-
“under schedule 4 of the Protection of Freedoms Act 2012, we do have the right to recover from ...............”

This statement makes it clear that Excel Parking is dealing with its claim in accordance with the requirements of Schedule 4 of POFA. The requirements of Schedule 4 are quite clear in that there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged debt.

The BPA Code of Practice supports the need for strict compliance (para 21.5 refers).

Excel Parking has however failed to comply in regards to paragraph 9(2)(h) of Schedule 4, PoFA 2012.

Whilst the ‘Notice to Keeper’ issued had indicated that Excel Parking require a payment to be made, there is no specific identification of the “Creditor”, who may, in law, be Excel Parking or some other party. PoFA requires a ‘Notice to Keeper’ to have words to the effect that “The Creditor is….”

The wording of Paragraph 9(2)(h) of Schedule 4 of PoFA does not indicate that the “creditor" must be named, but “identified”. To “identify” a “Creditor” a parking company must do more than name that person. The driver is entitled to know the identity of the party with whom he has legally contracted.

This view is supported by the Secretary of State for Transport. He has reserved to himself powers to make regulations to specify not only what must be said in a ‘Notice to Keeper’ but also what evidence should be provided. He says “The purpose of this power is to leave flexibility to mandate the specific evidence which must accompany a notice to keeper if it becomes clear that creditors are attempting to recover parking charges without providing keepers with sufficient evidence to know whether the claim is valid”

So, in addition to Excel Parking’s failure to specifically identify the “Creditor”, it has failed to provide any evidence that it, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions.

I therefore expected Excel Parking to immediately cancel the ‘parking charge’ but they however, rejected this challenge.

I have now referred this matter (and any further issues that I may subsequently raise) to POPLA for your adjudication on this matter.

Thirdly...

Another point to mention in appeal against this charge is in reference to the The BPA Code of Practice, in which it 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).

Furthermore Excel state that:

"The signs within the car park comply with the recommendations in the Code of Practice"

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"

As can be seen from the attached photos, the signs clearly use blue and yellow which hinder any easy recognition of the actual content of the signs. Excel appear to have made no improvements to their signage design since it was severely criticised by Deputy District Judge Lateef at Stockport County Court in Excel -v- Cutts, where Excel lost the case:

http://www.manchestereveningnews.co....-battle-870812

http://s3-eu-west-1.amazonaws.com/pl...2012_1b_mf.pdf '

Lastly...

With further reference to Section 21 of the BPA Code:

21 Automatic number plate recognition (ANPR)

21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.

21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.

21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.

I contend that these cameras in this car park are not compliant and so I require Excel to produce evidence to the contrary if they are to rebut this point, specifically producing to POPLA, contemporaneous records to evidence that the cameras here have received in 2014, regular maintenance and checks to ensure that the timing and detail of any images captured were accurate on the day of this event.

May I now point you to the text at the very top of this appeal. I assume you have skipped it and continued to the actual appeal points. If you have read this far, you have accepted a contract for payment of a sum of money. This is exactly the same situation as applies with this parking charge notification. Nothing more or less. It is exactly similar to suggesting that someone who drives beyond a sign agrees to the imposition of parking charges. You had the opportunity to throw this appeal in the bin without reading it. I hope you get my reasoning.

In conclusion, I accept that due to the wrong opinion made as to the terms of the parking arrangements there was an underpayment for a period relating to a cost of £1.00 and I will gladly make that payment in full and final acceptance of my responsibility. You can take it from the contractual charge you have just agreed to.

The signage used at the Snow Hill Car park fails to meet the required BPA guidelines that state “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.
The Excel signs are both white with black text and Blue with Yellow text – thus utilising two solid colours -making the sign contrast visibility difficult.
In addition , having returned to the car park during the exact time the converention supposedly took place – I took photos that show of the 4 signs sited on posts within the car park, all but 1 was lit and not made of a retro-reflective material, making the signs impossible to read during the hours of darkness – further highlighting guidance has been ignored “Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective.

You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle.
Further photographic evidence shows there are no signs along the back wall where the car was parked or along the walk way to the entrance leading to Snow Hill – giving the driver no opportunity to read the signs on leaving their vehicle.

21.1 You may use ANPR camera technology to manage,control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the
data captured by ANPR cameras for. The signs within Snow Hill are very misleading and fail to comply with the requirements stated in section 21.1 – the sign reads ANPR "MAY" be used, thus failing to neither provide transparency or advising driver the technology is Not "MAY"be used.


A driver should be given adequate time to absorb the requirements detailed on the signage allowing them to utilise the stated “grace period” in which they have sufficient time to decide to leave the car park and are no longer bound by a contract – I ask Excel parking to detail how long is this “grace period” and does this give the driver the opportunity to absorb all the details within the signage including the extremely small text that in itself would take 10/15 mins to read – leaving a further 5/10 minutes to read the remaining text equalling to 25 minutes which exceeds the time stated I parked for =21 mins – I therefore would not have had sufficient time to read all the text and left the car park well within a reasonable grace period.

The PCN also shows clearly my vehicle leaving the car park but does not show clearly entering the car park –

21.3 You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.

Another point I need to highlight is the PCN does not show my vechile number plate – on entering the car park – Excel need to prove I stayed in the car park for the duration stated within the PCN and the duration exceed the “grace period” the evidence is flawed and the 21 minutes duration of parking cannot be justified.

A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered either
1. (Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver; or
2. (Where no notice to driver has been served (e.g ANPR is used)) Not later than 14 days after the vehicle was parked – Notice was received 18 days later.



Yours sincerely

[mystery1]

Re: Help with Popla appeal

I'll take what info i can from that and do an alternative tomorrow. Then you can use yours or mine.

M1

[kimcatz]

Re: Help with Popla appeal

Hi M1 - just been advised by the Council they are not the owners of the car park - having firstly said they were - seems they only own the netto building not the car park - what impact will this have on my appeal - I will need to change any reference to Wolverhampton Council and ownership.

Please can you advise.

many thanks

[mystery1]

Re: Help with Popla appeal

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


Mixed your and my standard one. See what you think.




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




4. Parking Eye have failed to adhere to the BPA code of practice.




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

6. Failure to adhere to PoFA 212 Schedule 4





1.The charges are penalties.




The charges are represented as a Trespass. 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 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 broken down and could have purchased time for £1. Neither is it commercially justified because it would make no sense. If the charge should have been £1 then £100 is clearly a penalty. The £100 is not a genuine pre estimate of loss as the loss of revenue being £1 is crystal clear. 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. Parking Eye lost in court on this very point in Parking Eye v Cargius.




I require ParkingEye to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Parking Eye 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 imposes a parking fee for the area in question, there is only the limited loss to whoever it is due. 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.''




In Parking Eye v Beavis it was found that the charges were penalties although specific to that car park they were commercially Justifiable which clearly can't be in the case or trespass. Parking Eye v Cargius distinguished Beavis in relation to paid parking. Beavis is also subject to appeal in any case.


When one looks at the sign one sees that non blue badge holders are not allowed to park in disabled bays and are charged £100 if they do 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 £1 had they seen the signs which they did not. 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.








3.. Contract with landowner - no locus standi


Parking eye do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that Parking eye 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 Parking eye 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. Parking eye 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.

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).


Furthermore Excel state that:


"The signs within the car park comply with the recommendations in the Code of Practice"


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"


As can be seen from the attached photos, the signs clearly use blue and yellow which hinder any easy recognition of the actual content of the signs. Excel appear to have made no improvements to their signage design since it was severely criticised by Deputy District Judge Lateef at Stockport County Court in Excel -v- Cutts, where Excel lost the case:


http://www.manchestereveningnews.co....-battle-870812


http://s3-eu-west-1.amazonaws.com/pl...2012_1b_mf.pdf





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. Failure to adhere to PoFA 212 Schedule 4

I refer to the ‘Notice to Keeper’, ref Xxxxxxxxxx dated 04/03/2013 from Excel Parking and would wish to draw your attention to the following statement contained therein:-
“under schedule 4 of the Protection of Freedoms Act 2012, we do have the right to recover from ...............”


This statement makes it clear that Excel Parking is dealing with its claim in accordance with the requirements of Schedule 4 of POFA. The requirements of Schedule 4 are quite clear in that there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged debt.


The BPA Code of Practice supports the need for strict compliance (para 21.5 refers).


Excel Parking has however failed to comply in regards to paragraph 9(2)(h) of Schedule 4, PoFA 2012.


Whilst the ‘Notice to Keeper’ issued had indicated that Excel Parking require a payment to be made, there is no specific identification of the “Creditor”, who may, in law, be Excel Parking or some other party. PoFA requires a ‘Notice to Keeper’ to have words to the effect that “The Creditor is….”


The wording of Paragraph 9(2)(h) of Schedule 4 of PoFA does not indicate that the “creditor" must be named, but “identified”. To “identify” a “Creditor” a parking company must do more than name that person. The driver is entitled to know the identity of the party with whom he has legally contracted.


This view is supported by the Secretary of State for Transport. He has reserved to himself powers to make regulations to specify not only what must be said in a ‘Notice to Keeper’ but also what evidence should be provided. He says “The purpose of this power is to leave flexibility to mandate the specific evidence which must accompany a notice to keeper if it becomes clear that creditors are attempting to recover parking charges without providing keepers with sufficient evidence to know whether the claim is valid”


So, in addition to Excel Parking’s failure to specifically identify the “Creditor”, it has failed to provide any evidence that it, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions.



M1

[kimcatz]

Re: Help with Popla appeal

Hi M1, thanks so much for the above - please can you advise on my current situation in relation to ownership - Excel Parking to own the car park - I need to remove any reference of ownership from the appeal - does this still give me a good case to proceed?

regards

[mystery1]

Re: Help with Popla appeal

There is plenty outwith ownership to rely on.

Leave it all in anyway. If they have evidence to counter any argument then god for them. If not good for you.

M1

[kimcatz]

Re: Help with Popla appeal

Okay - thanks for that just one more question before I get ready to submit - the point I highlighted has not been included in your version of my appeal - I feel the failure below is valid and should I continue submission with this inclusion?

A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered either
1. (Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver; or
2. (Where no notice to driver has been served (e.g ANPR is used)) Not later than 14 days after the vehicle was parked – Notice was received 18 days later.

[kimcatz]

Re: Help with Popla appeal

I will be glad when this is over!!

[mystery1]

Re: Help with Popla appeal

Okay - thanks for that just one more question before I get ready to submit - the point I highlighted has not been included in your version of my appeal - I feel the failure below is valid and should I continue submission with this inclusion?

A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered either
1. (Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver; or
2. (Where no notice to driver has been served (e.g ANPR is used)) Not later than 14 days after the vehicle was parked – Notice was received 18 days later.

Stick it on to point 6.

How does the date of issue compare to the date of offence ?

M1

[kimcatz]

Re: Help with Popla appeal

The date of offence was 1st December - date of issue is 19th received on the 21st.

regards

[mystery1]

Re: Help with Popla appeal

Definitely an ANPR ticket and not a case where they put a ticket on the vehicle ?

M1