POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

[Dynamicman]

Hi

Can anyone assist/advise regarding my upcoming POPLA Appeal?

The original issue was caused by the fact that the signage was missed when using the car park late on a Sunday night. I feel that the operators charges are completely unreasonable (perhaps obviously) and I have (along with my first letter to them) sent them a cheque in the amount of £1.30 ie the amount that the parking would have cost me.

I have already made representations to the parking operator, which despite me clearly stating they did not amount to an appeal, were treated as such by the operator and rejected (attached below)

I was then forced to make representations to POPLA, which I did using a template found on a thread here (as was my first letter). They have now come back to me with a big evidence bundle which I disagree with on numerous points (as well as fundamentally) and I think that I should be introducing additional evidence for them to rebut but wonder whether this information is already available in the public domain or alternatively someone with a greater mind than mine can see key areas in my case which I should identify and put to POPLA.

Any help assistance would be greatly appreciated.

[Dynamicman]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

My first response:

On 30 November 2014 I was the registered keeper of a vehicle registration number xx.

Before I decide how to deal with your Notice to Driver/Keeper, I should be grateful if you would first answer all the questions and deal with all the issues I have set out below.

Once you have done so, I will be able to make an informed decision on how I deal with the matter.


I dispute the parking charge for the reasons set out below. Please note that although I dispute the whole basis of the parking charge (for the reasons set out below, the answers to which will form part of my decision making process with regards to how to treat your notice), my main concern is its disproportionate and punitive level.

1. No contract
There was no contract between the driver and Excel Parking Services Ltd. The driver did not see any contractual information on any signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.

2. Trespass
If there was no contract, then at most the driver was guilty of a civil trespass (though this is neither admitted nor denied). If this were the case, the driver may be liable to damages. Given that no ‘damage’ was done to the car park and that the car park was not completely full when the driver parked or when the driver left, there was in fact no loss at all.

3. Punitive/unfair/unreasonable charge
Even if there was a contract (which is denied), the following matters are relevant:

3(a). Punitive
The parking charge you are imposing is punitive and therefore void (i.e. unenforceable). The £100.00 parking charge is arbitrary and disproportionate to any alleged breach of contract or trespass. This would also apply to any mention of any costs incurred through debt recovery unless it followed a court order.

3(b). Unfair
The £100.00 parking charge you are imposing is an unfair term (and therefore not binding) under the Unfair Terms in Consumer Contracts Regulations 1999. In
particular, Schedule 2 of those Regulations which gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e):

‘Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.’

Furthermore, Regulation 5(1) says:

‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer’

And 5(2), which states:

‘A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’

3(c). Unreasonable
The £100.00 parking charge you are imposing is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:

‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

Further information I require you to provide and take notice of:
Please note specifically that this letter is not an appeal however, it is a challenge to the issue of the Notice to Driver/Keeper as set out in the BPA AOS Code of Practice B.22. I should be grateful for answers to all questions raised. In this respect I remind you of the obligations set out in the current Practice Direction on Pre-Action Conduct.

4(a). Cause of action
Please make this clear. If it is your claim that the driver entered into a contract, please send me a complete version of the terms and conditions of that contract to which you say the driver agreed to.

4(b). Further to the above please explain fully on which of the following grounds your claim is based:

(i) Damages for trespass
(ii) Damages for breach of contract
(iii) A contractual sum

5. Your loss
AS IT STANDS AND AS A GESTURE OF GOODWILL FROM THE DRIVER PLEASE FIND ENCLOSED A CHEQUE IN THE SUM OF £1.30 WHICH I UNDERSTAND COVERS THE FULL AMOUNT DUE AS ADVERTISED UNDER YOUR TERMS AND CONDITIONS FOR THE PERIOD DURING WHICH THE ALLEGED BREACH OCCURRED.

This is offered without prejudice in full and final settlement of the claim.


If this is unsatisfactory and it is your case that a trespass was committed or that a contract was breached such that your claim is one for damages, please give me a full breakdown of the actual loss you say was suffered by your business or the landowner/landholder.


6. Appeals procedure.
I require a copy of any appeal procedure you follow, along with details of what factors you take into account; who is the judge or arbitrator and whether they are independent; whether you require oral or written submissions; whether it is governed by the Arbitration Act 1996 and any other relevant factors. In addition, please give me disclosure of any arguments you would put forward on this matter in any subsequent appeal process so that either the registered keeper or the driver might consider his or her response to any existing or new issues which are raised.

8. Your status.
Your Notice to Driver/Keeper simply mentions Excel Parking Services Ltd. Please tell me who is the actual creditor making this £100.00 parking charge demand. I need to know exactly who is making the claim and in what capacity.

9. Ownership of premises.
Please tell me who owns the car park as I wish to send them a copy of this letter.

10. Contract to operate.
Please provide me with a copy of the contract between your company and the landowner/landholder.

11. Involvement of landowner/landholder.
Please explain any involvement, if at all, of the landowner/landholder with the management of parking at this site and specifically with regard to the issue and enforcement of your Notices to Driver/Keeper.

12(a). Photographs- handling.
Your notice refers to ‘photographic evidence’. Please send me a copy of your procedures for handling and processing that evidence and the relevant audit trail. Furthermore, under section 7 of the Data Protection Act 1998 please send me a copy of all such photographs along with a copy of all other data you hold relating to me. As this would be required to be disclosed in any event as part of your evidence bundle in the small claims process, I do not expect to pay for the release of my personal data which you hold.

12(b). Photographs – evidence.
The copies of the photographs that you have provided along with the Parking Charge Notice merely show my vehicle entering and leaving the car park but do not show the actual alleged parking contravention on which your Parking Charge Notice has been issued. Please therefore provide me with copies of all photographs that evidence the actual alleged parking contravention itself

13. Signage.
If it is your case that a contract has been breached or that a contractual sum is now due, please send me photographs of the signs that you display and upon which you seek to evidence that a lawful and legally enforceable contract was been entered into. Please ensure that the photographs show the terms and conditions in a clear and legible manner. Please provide me with a diagram showing the locations and layout of those signs at the car park. Also provide evidence that the wording is in plain and intelligible language and in sufficiently large print as to be legible to a driver at the car park’s entry point.

14. Legal representation.
Please provide me with the name and address of your solicitors, if any, in order that I may copy them into this correspondence.

15. To avoid doubt, please do not do any of the following:
(i) Send any further correspondence or documents to me or try to communicate with me in any way except to address in writing the specific points I have raised in this letter.
(ii) Send me any document purporting to be from the county court unless it is a valid claim form duly issued.
(iii) Write to me threatening to send bailiffs to my address without first issuing a court claim form and obtaining judgment.
(iv) Send me any standard letters from your company or debt collectors.

16. If you wish to make a claim
You may do so online. My address for service is set out at the top of this letter. If you do decide to issue proceedings, please note that:
(i) I reserve the right to add further arguments to the defence
(ii) I or my representative will be happy to attend any court mediation that might be offered.

17. I look forward to receiving your acknowledgement within 14 days and a comprehensive reply within 35 days (in accordance with the BPA AOS Code of Practice B.22.8).
I will then be able to make an informed decision as to how I shall respond to your Notice to Driver/Keeper.

18. If you reject this challenge or fail to address the issues that have been raised then, in accordance with the BPA AOS Code of Practice 22.12, please ensure that you enclose all the required information (including the necessary ‘POPLA code’) so that I may immediately refer the matter for their decision.

19. If you fail to follow any of the procedures outlined in the BPA AOS Code of Practice or your legal requirements under the Protection of Freedoms Act, or the requirements of the Practice Direction on Pre-Action Conduct then I will make a formal complaint to the DVLA Data Sharing Policy Group, D16.

Please Note: Unless you have specifically requested it and received my express permission, you do not have my authority to disclose or refer this letter or any other communication from me to any other person or organisation.

[Dynamicman]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

My POPLA appeal:

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


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


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



1.The charges are penalties.

The charges are represented as a breach of contract. Whilst it is disputed that a valid 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 not proportionate to a 55 minutes overstay when parking itself is significantly cheaper. Neither is it commercially justified because there is a revenue stream from pay and display charges. 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 Excel to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Excel 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 Excel 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.''

It is worth noting that after receiving my parking charge notice from Excel I wrote to them on 16 December 2014, requesting further information from them regarding the nature of the parking charge so that I could determine how I dealt with the notice to keeper which I received from Excel. (Despite specifically stating in that letter that it did not represent an appeal only a challenge to the issue of the notice to keeper/driver under BPA AOS Code of Practice B.22, Excel as is shown in their response to me, have specifically treated the matter as an appeal. Therefore I have been left with no option but to appeal to you directly under your process prior to the matter moving into pre-action consideration in every effort to avoid legal proceedings.)

In this letter (submitted as evidence) I set out many of the points on which I disagree with the parking charge notice, amongst this I requested details regarding the amount of loss incurred by Excel in relation to this specific alleged contravention. Excel have not done this in their response to me, stating only that "the amount of our PCN charges...represent a sum for liquidated and ascertained damages in respect of a breach of the parking contract. Those parking charges have been calculated in advance...".

Firstly I reject that a parking contract with the driver was formed (see point 2 below) and secondly Excel's explanations for the £100 charge are not adequate for either a response to the question I asked, nor the satisfaction of a genuine pre-estimate of the loss said to have taken place by this alleged contravention.

I should also point out this alleged contravention took place at 20.34 on a Sunday evening (30/11/14) when the car park was nearly empty and the vast majority of retail outlets, which the car park serves were closed, with only Nando's in the vicinity where the driver parked remaining open at the time. It is impossible to envisage that in such circumstances there were any other losses to Excel than the amount of alleged unpaid parking.

Parking charges for this car park are set out at http://www.peelcentrestockport.com/parking/ and it is worth noting that an offer was made by the driver to the amount of alleged unpaid parking for the duration of the alleged stay. A cheque in full for this amount was included with my response to Excel's
Notice to Keeper/Driver letter of 16 December 2014 as is noted in the letter itself sent via recorded delivery. It is worth noting that this cheque has not been returned at the date of writing.

Excel go on to state in their response that "when a motorist parks in breach of the terms and conditions of parking, a loss is incurred by us as incorrect parking prevents the efficient management of the car park. If we are unable to regulate the car park our clients would not require our services and the company would cease to exist. It is therefore commercially justifiable that the operator seeks to enforce its terms and conditions."

I refer you to the points made above regarding the date, time and capacity of the car park in order to rebut Excel's suggestion that this recovery is commercially justifiable in terms of the alleged contravention. For the avoidance of doubt, at the time the driver committed the alleged contravention, the alleged contravention would not have prevented efficient management of the car park. I would require further evidence from Excel if they allege that this is the case and seek to rely on this point.

Additionally I do not accept Excel's contention that their own continued commercial existence is an acceptable or justifiable reason for them to enforce disproportionate parking charges without alternative evidence of their loss.


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

The driver did not notice the signs either before entering the car park nor once they were in it. This can only be because the signs were not sufficiently clear as to the nature of their obligations taking into account the fact that drivers are often moving at the time, approaching from different directions and appreciating driving conditions such as rain, darkness, poor visibility etc as was the case here. 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 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 car park with much lower tariffs available - and therefore I contend the elements of a contract were conspicuous by their absence.


3. Contract with landowner - no locus standi

Excel do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that Excel 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 as has been provided by Excel in their response letter dated 5 January 2015).

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 Excel 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 Excel 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. Excel 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. 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 in ParkingEye 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.

[Dynamicman]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

The response I have received from Excel:

Contravention Date/Time:	30/11/2014 at 20:34
PCN Issue Date:	09/12/2014
Car Park Site:	Peel Centre (Stockport)
Contravention:	[94] - Parked Without Displaying a Valid Ticket/Permit
Reasons For Issue:	Breach of Contract/Trespass. The appellant (Mr King) parked his vehicle in the Peel Centre Car Park without purchasing a valid Pay & Display (P&D) ticket. The vehicle was first observed entering the car park at 19:39 and exiting at 20:34, a total of 55 minutes in a controlled P&D car park. The appellant did not purchase a valid P&D ticket as per the Terms and Conditions of parking.
Signage and Machines:	The signage clearly states “PAY AND DISPLAY CAR PARK”. The entrance signs state, “Any driver/registered keeper remaining in this Car Park 15 minutes after entry agree in full to the Terms and Conditions” and, “Customers have 15 minutes from entering the Car Park to purchase a valid Pay and Display ticket”. Machine inserts at the point of sale state, “Enter Full Vehicle Registration”. Signage also states, “ANPR – Automatic Number Plate Recognition Cameras are in operation in the car park”. There are 86 x highly prominent signs on site including 5 x Entrance Signs (2000mm x 1000mm) 29 x Information signs (1220mm x 660mm) 17 x Tariff boards (1200mm x 1000mm), 14 x “Pay Here” signs erected at a height of approximately 2.5 metres and 21 x Disabled P&D signs situated at key locations throughout the area. Photographs confirm that signage can clearly be observed throughout the car park including the entrance - see Section F. Machines at the Peel Centre Car Park benefit from movement sensors that activate an audio message when approached, stating, “Please ensure you enter your full vehicle registration number when purchasing your ticket. I repeat, please enter your full vehicle registration number when purchasing your ticket. Thank you” (see Section: G for a copy of this audio file). ANPR cameras show that the appellant’s vehicle entered Zone 2 of the Peel Centre Car Park ‘StockPeelZ2In’ and later exited through Zone 2 ‘StockPeelZ2Out’. Therefore, the appellant’s vehicle has remained in an area of the car park which has 2 x Entrance Signs, 2x Disabled P&D Signs, 11 x Information Signs and 5 x Tariff Boards.
Summary of Evidence:	The Peel Centre Car Park is private land and motorists are allowed to enter that land for the purpose of parking their vehicle, provided that they abide by any clearly displayed conditions of parking. It is clear that the terms of parking stated that a Pay and Display ticket must be purchased and displayed or the motorist would face liability for a Parking Charge Notice. Signage states, “Customers have 15 minutes from entering the car park to purchase a valid Pay & Display ticket”. A reasonable grace period of 15 minutes is permitted on site to allow motorists to park, read the Terms and Conditions and either leave the site or purchase a valid pay and display ticket as per the Terms and Conditions displayed. Management of the Peel Centre Car Park is conducted by ANPR cameras which take photographs of vehicle registration numbers as vehicles enter and leave the car park. The VRM images are compared with tickets purchased at the P&D machines, any vehicle that remains on the car park for 15 minutes and fails to purchase a valid P&D ticket will result in a Parking Charge Notice being issued. The images showing entry and exit of the appellant’s vehicle at the Peel Centre Car Park can be found in Section: F. Machines at the Peel Centre Car Park benefit from movement sensors that activate an audio message, which states, “Please ensure you enter your full vehicle registration number when purchasing your ticket. I repeat, please enter your full vehicle registration number when purchasing your ticket. Thank you” (see Section: G for a copy of this audio file). The Tariff board at the point of sale states: “Parking Charge Notices will be issued for the following: - Failure to purchase a valid Pay and Display ticket within 15 minutes following entry to the car park”. The appellant did not purchase a valid P&D ticket as per the Terms and Conditions of parking. A comprehensive search of the P&D Ticket Database, which records details of all P&D tickets purchased at the Peel Centre, shows that no ticket was purchased that either matched or resembled the appellant’s VRM ‘YB59NYU’ for his stay in the car park, to the end of the 15 minute allowed grace period’. (Section G) In his appeals to Excel Parking Ltd, at no time does the appellant address the key point that his vehicle entered a P&D car park and failed to purchase a ticket, as required by the terms and conditions displayed, and he offers no mitigation or reason in respect of that contravention. In his appeal the appellant states that “the charges are penalties and not a contractual charge” and questions the loss incurred by the parking operator as a consequence of their contravention. However, they are wrongly assuming that the loss is based on revenue but this is not the case, as wherever there is a parking contravention, procedures are triggered that initiate the loss. We would refer to Paragraph 3 of our supplied Genuine Pre-Estimate of loss statement which details those procedures. All of the work described forms the basis of the loss claimed in our argument and illustrates that the PCN is a reasonable pre-estimate of the anticipated loss that MAY be incurred following a contravention. We acknowledge that not all stages of process will be reached and, therefore, we must repeat that the genuine pre-estimate of our loss HAS TO BE BASED on the cost that MAY be anticipated at the time of that initial breach. As our included costs clearly show, our costs are neither extravagant nor unconscionable. If the appellant appeals the PCN or the keeper provides details of an alternative driver at the time, then the work involved is increased and the loss increases accordingly. Furthermore following rejection of a motorists representations, we must allow for the receipt of further representations from the motorist which need to be logged, reviewed and responded to as is also highlighted in our statement. There is a long and detailed process put in place to enforce terms & conditions at a car park or restricted areas/roadways on private land. If we did not enforce breaches of the terms and conditions this would lead to a loss of control of the private land, where vehicles park/stop without consideration to others and/or block access routes etc. Without enforcement, motorists may not adhere to the terms and conditions which would lead to a loss of revenue, which would not be sustainable for a parking/enforcement operator or an acceptable loss to their clients. Also the operator’s inability to control the site could lead to a failure to keep, for example, allotted disabled bays, available for those in most need of it. If operators cannot regulate the private land, their clients would not require their services and the company would cease to exist. It is therefore commercially justifiable that the operator seeks to enforce its terms and conditions. The Parking Charge Notices (PCN’s) that we issue represent a claim for liquidated and ascertained damages in respect of a breach of contract’ which is deemed to have been offered by our signage at the location, and accepted by the motorist in that he opted to remain. The breach of the stated terms and conditions has been proved by other evidence elsewhere in this submission. When a motorist uses the private land and is in breach of the terms and conditions of use of the private land, a loss is incurred by us and also impacts on our ability to effectively manage the site. The appellant has not offered any evidence as to why the charge exceeded the appropriate amount; they have simply stated that in their opinion it does. We contend that that the onus is on the motorist to lay out their reasons with supporting evidence as to why the charge is not appropriate. That said we aim to set out our position in the remainder of this document as to why our charges are based on a genuine pre-estimate of the losses incurred by us due to the breach of the stated terms and conditions. Excel Parking Services Ltd would draw the adjudicator’s attention to the Parking Operators response to the appellant’s argument, contained in our statement, contained within Section G and represents an updated version. It is important to note that the costs outlined in our statement reflect only those costs which are directly incurred as a result of issuing and processing a Parking Charge Notice and do not include any costs or apportionment of costs associated with general company overheads. We would contend that it is too late now for the motorist to indicate that they are unhappy with the parking charge as this should have been done at the time of accepting the contract. When using the private land in question, the motorist freely enters into an agreement to abide by the terms and conditions applicable in return for permission to use that land. It is the motorist’s responsibility to ensure that he/she abides by the advertised terms and conditions of that private land. If the motorist was unhappy with the contract terms, they should not have remained or stopped on the land. The amount of our charge has been calculated in advance and is clearly set out on the notices and signage. As such it is accepted on staying or stopping on the private land and the driver cannot claim that there are any Trading Standards or Consumer Regulation breaches as they have accepted the conditions at the point of opting to remain or stop on that private land. On accepting the contractual terms and conditions, we assert that the appellant cannot now seek to effectively renegotiate them or to dismiss them in their entirety. The charge of £100 reduced to £60 is as advertised and within BPA guidelines (Para. 19.5 of the BPA Code of Practice). We would state that a simple statement from a motorist that in their ‘opinion’, a parking charge is ‘unreasonable, excessive or punitive or not a genuine pre-estimate of loss’ is insufficient in itself; the argument needs to be qualified with supporting evidence, as is done by the parking operator. If, in the adjudicator’s opinion, such evidence has not been adequately supplied by either party, then we request that further clarification should be sought, before the case is finally adjudicated upon. In any event, if the adjudicator considers that our pre-estimate of loss calculation is too high, or requires further clarification on any aspect; relevant details should be requested from the operator. We would also highlight to the assessor the following clauses in Schedule 1 of POPLA’s Service Specification Schedule which state: 11.1 An assessor or adjudicator shall consider all of the submissions made by both parties before making a decision on the appeal. 11.2 If the assessor or adjudicator considers that further evidence is required before a decision can be made then such evidence shall be sought in writing from the relevant party. The appellant goes on to state that the signage is unclear and non-compliant. We maintain that our signs are clearly visible and meet the requirements set by the British Parking Association guidelines. As established members of the British Parking Association, we adhere to their Code of Practice for Private Enforcement on Private Land and Unregulated Car Parks. This Code of Practice gives recommendations in regards to the signage within the car park. The signs within the car park fully comply with the recommendations outlined in the Code of Practice and are therefore deemed reasonable. We would also advise that the signage at the Peel Centre was updated following the decision in Cutts. In law a person can enter into a contract either by expressly agreeing to do so or by acting in such a way that he/she can be said to have implied agreement to enter into a contract. Where notice is given to a motorist of the consequences of parking in a particular area, by implication a motorist enters into a contract with Excel Parking Services Ltd and accepts the terms set out in the Notice by proceeding to park. The appellant also questions the rights of Excel Parking Services Ltd to issue Parking Charge Notices at the Peel Centre Car Park and requests a copy of the contract with the landowner. A statement of authority signed by the landowner, which states, “The operator is authorised by the landowner to issue Parking Charge Notices where vehicles are parked on the site in a manner not permitted under the Terms and Conditions of parking” and, “The operator is authorised by the landowner to pursue the outstanding parking charges in accordance with the British Parking Association’s Approved Operator Scheme Code of Practice”, can be found in Section G and is marked ‘Confidential’. If the POPLA adjudicator requires further information not covered in this document, then it can be produced at a later date on request. This is provided for the sole purpose of evaluation of the information submitted herewith and, in consideration of receipt of this document, the recipient agrees to maintain such information in confidence and not to reproduce or otherwise disclose this information to any person. The appellant also questions the use of ANPR cameras at the Peel Centre Car Park and its compliance with Section 4 of the Protection of Freedoms Act 2012 (PoFA). Section 21 of the BPA Code of Practice states: “You may use camera technology to manage, control and enforce parking in private car parks, as log as you do so 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 use the data captured by ANPR cameras for”. Section 21 has numerous sub sections which regulate quality checks, maintenance of equipment and use of data in relation to ANPR images. Excel Parking Services complies with all sections and subsections as detailed in the Code of Practice. It should also be noted that two levels of human conducted validation checks are made for each and every ANPR contravention before any Parking Charge Notice is issued. Signage states, “ANPR – Automatic Number Plate Recognition Cameras are in operation in the car park” and, “This site may be monitored by CCTV/ANPR parking enforcement cameras for the purpose of ensuring compliance with the Terms and Conditions of this car park. Parking Charge Notices may be issued by post”. The ANPR cameras and Pay and Display machines have an onboard clock which is synchronised using standard Network Time Protocol (NTP) process over an internet based link to the time signal provided by the National Physical Laboratories in the UK, which is the UK’s National Measurement Institution. The Network Time Protocol (NTP) is the most widely used method for transmitting time information across the Internet. NTP takes as its time reference the international atomic time scale, Coordinated Universal Time (UTC), which is kept within 0.9 seconds of the astronomical time scale Greenwich Mean Time by the insertion of leap seconds when necessary. NTP aims to provide the best attainable synchronisation to UTC by using a hierarchy of time servers. At the top are those servers, known as stratum 1, that obtain their time from an external source of UTC such as an off-air receiver for GPS or radio time signals. Servers synchronised to one or more stratum 1 servers are known as stratum 2, and so on. The ANPR cameras and Pay and Display equipment are daily synchronised to the same time source at the National Physical Laboratory using NTP by running client software within the equipment operating system. The client sends periodic time requests across the Internet and each call to a server results in an exchange of time-stamped packets of data that allow the client software to estimate the network delay and the rate offset between the client computer’s clock and the server, and uses this information to adjust the clock. In doing this process daily the system ensures that the time held upon the camera correlates to the time held on the Pay and Display machines such that any natural drift inherent within any electrical device is minimised to milliseconds within any day. At each synchronisation of the time service, the equipment reports a successful log of the connection with the NTP and this is used to verify that the equipment is operating with normal parameters. The cameras at the site are networked into a monitoring system, which records and alerts real-time any problems seen with any of our devices or cameras and this is then used to address faults or action repairs. All P&D machines periodically connect to the Excel Parking Services ASLAN monitoring system which is located on a physical Windows server located in the secure IT. The ASLAN server is synchronised automatically using the Network Time Protocol. When P&D machines connect they report activities such as open doors, faults and cash collections. As part of the scheduled connections the devices synchronise their time on each connection which can be upwards of 15 times per day. There is a helpline number located at the bottom of all the signage on site which is available to all motorists who have any queries or are experiencing difficulties. This was not utilised by the appellant. We must reiterate that the appellant did not purchase a valid P&D ticket as per the Terms and Conditions of parking at the Peel Centre which is a privately owned and operated car park. There are 86 highly prominent signs on the Peel Centre car park which include 5 x Entrance Signs 29 x Information signs, 17 x Tariff boards and 14 x “Pay Here” signs erected at a height of approximately 2.5 metres which are situated at key locations throughout the area and 21 x Disabled P&D signs. Photographs confirm that signage can clearly be observed throughout the car park including those at the entrance. (Section F) When parking on private land, a motorist freely enters into an agreement to abide by the conditions of parking in return for permission to park. It is the motorist’s responsibility to ensure that he or she abides by any clearly displayed conditions of parking. It is clear that the terms of parking stated that a valid pay and display ticket must be purchased and displayed containing the vehicles full VRM or the motorist would face liability for a parking charge. By the driver failing to purchase a valid ticket, the appellant, as the registered keeper, subsequently became liable for a parking charge notice as per the Terms and Conditions displayed.

[mystery1]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

What does the genuine pre estimate of loss sheet say ?

M1

[Dynamicman]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

[MENTION=5354]mystery1[/MENTION]

I have attached it to this post Mystery1 thank you...I also have a contract statement from them, let me know if you would like this as well.

[des8]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

That is just lovely as a pre estimate.
Pay at first demand and it's only £8.
I can't wait to see m's comments!

[mystery1]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

I'll have a thorough read tonight/tomorrow as i'm working all day today.

M1

[Dynamicman]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

[MENTION=5354]mystery1[/MENTION]

Thanks very much. Very appreciated!

[redleg]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

What would the minimum P&D charge be if you had purchased a ticket?
E.G First half an hour free, £1.50 per hour there after?

[Dynamicman]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

What would the minimum P&D charge be if you had purchased a ticket?
E.G First half an hour free, £1.50 per hour there after?

No its £1.30 for 0-3 hrs 6am - 9pm Mon - Sun

[mystery1]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

You'll probably win anyway but i'd submit this for further information.


Excel state
" The Tariff board at the point of sale states: “Parking Charge Notices will be issued for the following: - Failure to purchase a valid Pay and Display ticket within 15 minutes following entry to the car park”."
Reply :-


There can be no clearer evidence than the operators own words that this is in fact a penalty. If a driver purchases the correct time 16 minutes after entry they will receive a PCN. NO doubt the PCN will not be reduced by the amount paid 16 minutes after entry.



Excel state :-

"In his appeal the appellant states that “the charges are penalties and not a contractual charge” and questions the loss incurred by the parking operator as a consequence of their contravention. However, they are wrongly assuming that the loss is based on revenue but this is not the case, as wherever there is a parking contravention, procedures are triggered that initiate the loss."

Reply:-

If there is no initial loss then there can be no costs flowing from any breach. The operator seems to say they are manufacturing a loss where none exists. The GPEOL calculation sheet also has no initial loss (amongst plenty of business costs and items such as charging for popla appeals) This fits with my contention that it is in fact a penalty. Indeed Excel further state " It is important to note that the costs outlined in our statement reflect only those costs which are directly incurred as a result of issuing and processing a Parking Charge Notice and do not includeany costs or apportionment of costs associated with general company overheads.

As such there is no initial loss, according to Excel.

This is further backed up when Excel state "

1. There is a long and detailed process put in place to enforce terms & conditions at a car park or restricted areas/roadways on private land. If we did not enforce breaches of the terms and conditions this would lead to a loss of control of the private land, where vehicles park/stop without consideration to others and/or block access routes etc. Without enforcement, motorists may not adhere to the terms and conditions which would lead to a loss of revenue, which would not be sustainable for a parking/enforcement operator or an acceptable loss to their clients. Also the operator’s inability to control the site could lead to a failure to keep, for example, allotted disabled bays, available for those in most need of it. If operators cannot regulate the private land, their clients would not require their services and the company would cease to exist. It is therefore commercially justifiable that the operator seeks to enforce its terms and conditions."

It is clear that the charge is to deter abuse and as such is an unenforceable penalty.

The operator mysteriously claims a contract was entered in to yet also states the driver did not pay and thus did not agree to enter a contract. The charge is clearly not a tariff for parking as it states no time limit or other conditions. Is it unlimited parking for life ?






Your initial appeal should produce the same result as

http://forums.pepipoo.com/lofiversio...hp/t96088.html

M1

[Dynamicman]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

You'll probably win anyway but i'd submit this for further information.


Excel state
" The Tariff board at the point of sale states: “Parking Charge Notices will be issued for the following: - Failure to purchase a valid Pay and Display ticket within 15 minutes following entry to the car park”."
Reply :-


There can be no clearer evidence than the operators own words that this is in fact a penalty. If a driver purchases the correct time 16 minutes after entry they will receive a PCN. NO doubt the PCN will not be reduced by the amount paid 16 minutes after entry.



Excel state :-

"In his appeal the appellant states that “the charges are penalties and not a contractual charge” and questions the loss incurred by the parking operator as a consequence of their contravention. However, they are wrongly assuming that the loss is based on revenue but this is not the case, as wherever there is a parking contravention, procedures are triggered that initiate the loss."

Reply:-

If there is no initial loss then there can be no costs flowing from any breach. The operator seems to say they are manufacturing a loss where none exists. The GPEOL calculation sheet also has no initial loss (amongst plenty of business costs and items such as charging for popla appeals) This fits with my contention that it is in fact a penalty. Indeed Excel further state " It is important to note that the costs outlined in our statement reflect only those costs which are directly incurred as a result of issuing and processing a Parking Charge Notice and do not includeany costs or apportionment of costs associated with general company overheads.

As such there is no initial loss, according to Excel.

This is further backed up when Excel state "

1. There is a long and detailed process put in place to enforce terms & conditions at a car park or restricted areas/roadways on private land. If we did not enforce breaches of the terms and conditions this would lead to a loss of control of the private land, where vehicles park/stop without consideration to others and/or block access routes etc. Without enforcement, motorists may not adhere to the terms and conditions which would lead to a loss of revenue, which would not be sustainable for a parking/enforcement operator or an acceptable loss to their clients. Also the operator’s inability to control the site could lead to a failure to keep, for example, allotted disabled bays, available for those in most need of it. If operators cannot regulate the private land, their clients would not require their services and the company would cease to exist. It is therefore commercially justifiable that the operator seeks to enforce its terms and conditions."

It is clear that the charge is to deter abuse and as such is an unenforceable penalty.

The operator mysteriously claims a contract was entered in to yet also states the driver did not pay and thus did not agree to enter a contract. The charge is clearly not a tariff for parking as it states no time limit or other conditions. Is it unlimited parking for life ?






Your initial appeal should produce the same result as

http://forums.pepipoo.com/lofiversio...hp/t96088.html

M1

Thank you very much for this [MENTION=5354]mystery1[/MENTION] I will submit the above into evidence and let you know the outcome.

Greatly appreciate the advice.

[redleg]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

No its £1.30 for 0-3 hrs 6am - 9pm Mon - Sun

What you have to realize it's the loss incurred and not running costs, so realistically their loss would have been (i'm been generous here) £1.30
The first paragraph in the breakdown of GPEOL include running costs.
Stick with the advice from Mystery1 and you wont go far wrong

[Dynamicman]

Re: POPLA APPEAL BEING HEARD 23-2-15. Excel Parking Services v Me

What you have to realize it's the loss incurred and not running costs, so realistically their loss would have been (i'm been generous here) £1.30
The first paragraph in the breakdown of GPEOL include running costs.
Stick with the advice from Mystery1 and you wont go far wrong

Thanks very much [MENTION=41068]redleg[/MENTION] my thoughts exactly and the crux of my argument with them. There is no justification for their imposition of this ridiculous penalty and because they have gone to such lengths to try and suggest there is, I have hammered them on almost every single point in their evidence pack. (I have however made mystery1's advice the main focus of my response - i needed to, to stop it becoming a rant, but it just gets you so you feel irate, you feel the need to "have your say"). I was telling my gf yest that as it's not happened to me before and it's so time consuming and stressful i can see how so many people cave in and just pay and I'm really determined, totally convinced I'm right, as well as having a background in law. A thoroughly despicable way of making money!

Response is in i shall let you know the outcome. Thanks for your support.