Met Parking - McDonalds - Driver not present at time of survey

[rower]

I've had a letter through the post for a contravention at the end of January saying that the driver was not present at the time of survey. It appears a PCN was placed on my car for pictures, but never seen by either myself or my partner. It is saying the charge is now £100.
The first pic of the car was at 14.41 just showing the rear end, and the remaining pics were taken (including showing a poorly placed PCN) at 14.51, with the contravention being timed at 14.52.

At no point did anyone come in claiming they were 'surveying' who had parked in the car park. As the PCN was never seen or known about until the letter yesterday I have no idea what evidence they claim to have with regarding to proving I wasn't on the premises (it's my 1st ever ticket in 15 years of driving).

Is this just a ruse to get people into paying, or should I be working out wording for an appeal to Met Parking?

[mystery1]

Re: Met Parking - McDonalds - Driver not present at time of survey

Appealing is the way forward.

Can you scan the notice to keeper please. Remove name, address, reg number but not the dates.

M1

[rower]

Re: Met Parking - McDonalds - Driver not present at time of survey

Hopefully I have attached the letter.

[mystery1]

Re: Met Parking - McDonalds - Driver not present at time of survey

Dear Sirs,


I, as registered keeper, wish to invoke your appeals procedure. The driver did not receive a ticket on the vehicle and as such your have no right to chase me as keeper. Your notice to keeper is also flawed in that it does not compliy with PoFA 2012 schedule 4 paragraph 8. In any event your charges are penal in nature and not a genuine pre estimate of loss.


I am under no statutory obligation to name the driver and will not do so.


If you reject my appeal please supply a popla code.


Yours etc


If they supply a popla code please return and i'll sort out a popla appeal for you.




M1

[rower]

Re: Met Parking - McDonalds - Driver not present at time of survey

Thanks for the reply.

I have now used their online form to appeal, so will await the outcome in the post.

[rower]

Re: Met Parking - McDonalds - Driver not present at time of survey

had the appeal rejected letter through today stating that the charge stands and that a manager signed the survey to confirm driver wasn't present. Is this their standard reply into scaring people into paying the £100?

[wales01man]

Re: Met Parking - McDonalds - Driver not present at time of survey

Does Mcdonalds have CCtv this would prove you were there?

[ostell]

Re: Met Parking - McDonalds - Driver not present at time of survey

Since they have introduced the matter ask for sight of the signed survey.

How can a manager working inside McDonalds possibly know which car outside belongs to which of his customers. He probably can't be arsed and just signs the form anyway.

[Kati]

Re: Met Parking - McDonalds - Driver not present at time of survey

had the appeal rejected letter through today stating that the charge stands and that a manager signed the survey to confirm driver wasn't present. Is this their standard reply into scaring people into paying the £100?

Did you get a popla code with the rejection letter?

[rower]

Re: Met Parking - McDonalds - Driver not present at time of survey

Yes popla code included, but nothing stated about gpeol as grounds for appeal. Is that just standard as well?

[mystery1]

Re: Met Parking - McDonalds - Driver not present at time of survey

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




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




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




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




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




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


6. Non compliance with PoFA 2012 schedule 4.




1.The charges are penalties.




The charges are represented as a breach of contract. Whilst it is disputed that a contract was entered into (see point 2) according to the BPA code "If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance"




£100 is clearly not proportionate to a few minutes overstay when parking itself is free. Neither is it commercially justified because patrons of McDonalds will spend more money if they have more time. The car park wasn't full so there was no intial loss. As this is clearly a trespass scenario, although not described as such, the charges in law need to be a genuine pre estimate of loss.




I require MET to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. MET 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 MET nor the landowner. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''






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




I did not see any signs at the site. I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a free car park - and therefore I contend the elements of a contract were conspicuous by their absence.








3.. Contract with landowner - no locus standi
MET do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that MET 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 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 limited to that of a mere parking agent. I believe it is merely a standard business agreement between MET 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. MET 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 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 o fmy 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. PoFA 2012 schedule 4


In order to hold the keeper liable for any parking charge the requirements of PoFA 2012 schedule 4 must be met. The notice to keeper was issued after 14 days so cannot be under para 9. It does indeed state it is in line with para 8 which must be sent between 28 and 56 days from the date of the event. However, there was no notice to driver at all which is a statutory precursor to this and as it was missing there can be no keeper liability.


M1

[wales01man]

Re: Met Parking - McDonalds - Driver not present at time of survey

Wow!

[ODC]

Re: Met Parking - McDonalds - Driver not present at time of survey

WOW!!! Indeed.