MET Parking Services advice - Own space - won

[Akshay]

Re: MET Parking Services advice - Own space

thanks. much appreciated. I thought will provide all the required points.

[mystery1]

Re: MET Parking Services advice - Own space

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. Keeper liability.



1.The charges are penalties.

The charges are represented as a failure to display a permit. The driver on the day had permission to from the legal occupier . 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 £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.''


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.


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. The occupier is a leaseholder who has paid for the right and has not contracted any parking management company for parking services. 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 this particular space, 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 MET 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 non existent. I believe it is merely a standard business agreement between MET parking and their client, however their client has no right to give occupier rights to 2 different entities. 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.


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. 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


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 E & F has not been complied with at all. Other sections are not totally complied with either. The keeper is not invited to pay.






M1

[Akshay]

Re: MET Parking Services advice - Own space

Thanks i may never had drafted this type of appeal.

Will put same response for both the PCN.

Really appreciated your response will update you once i get response from them

[Akshay]

Re: MET Parking Services advice - Own space

Hi,

I have copied the appeal letter exactly Provided, thanks for it. Got following message from the POPLA

This will now be sent to MET Parking Services Ltd.The operator will send their evidence to us and to you before the scheduled date of hearing.
Your appeal will be considered on or soon after 02 September 2015 . You will be notified of the decision as soon as it is available, in the manner you selected.
Please note that in common with other tribunals, all electronic submissions and attachments received at POPLA will be destroyed after 6 months from the date of the last action in the matter and all hard copy received will be securely disposed of after six months from that same last action date.

[Akshay]

Re: MET Parking Services advice - Own space

Hi

Thank you very much for your response. I got email from POPLA with following words.


-v-
MET Parking Services Ltd (Operator)
The Operator issued parking charge notice number XXXXXXXXXXX arising out of a presence on private land, of a vehicle with registration mark XXXXXXX
The Appellant appealed against liability for the parking charge.
The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.
The Assessor’s reasons are as set out.
The Operator should now cancel the parking charge notice forthwith.
XXXXXXXXXXX 2 17 September 2015
Reasons for the Assessor’s Determination
It is the Appellant’s case that the parking charge notice was issued incorrectly.
The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.
Accordingly I have no option but to allow the appeal.


They have ask to cancel the parking charge notice forthwith, really appreciated your time and correct response to resolve the issue.

[Trev1234]

Re: MET Parking Services advice - Own space

Hats off to you Mystery1!