A question about : Residents Private Car Park PCN
Hi everyone,
I have an assigned space in a gated (key fob entry) residents car park in the North of England, I have just been issued with a PCN due to the permit not being visible when the warden visited.
The permit is of the thin plastic/vinyl type and was affixed to the windscreen when the car was parked but had become unstuck sometime within the 5 day period before the warden issued the PCN. The vehicle isn't used on a daily basis so this unfortunately went unnoticed.
As with most cases on here the Ј100 PCN would be reduced to Ј60 if paid within 35 days.
An appeal was made explaining that the permit had become unstuck and that the car had been parked in the same space for 4 months at the time the PCN was issued, proof of the valid permit was also provided.
The appeal was rejected but the charge was reduced to Ј15 as 'a goodwill gesture' if paid within 35 days. I believe this provides a strong case for 'No genuine pre-estimate of loss' seeing as the PCN started off at Ј100.
I now have a POPLA code and I've pieced together the following letter using the fine examples & templates on this forum. I'd really appreciate it if you could find a few minutes to cast your collective eye's over it and let me know if there's anything you feel I should add/remove before submitting to POPLA?
I've omitted the operator name from this post on purpose, but it's one of the operators featured on a Channel 4 programme last night. 
Many thanks in advance!
Trent
---------------------------------------
Dear POPLA Assessor,
I am the registered Keeper of the above vehicle and I'm writing this to appeal a charge sent to me by the operator (xxxxxxxx). The vehicle in question was parked in a private car park, on private land of which bay xxx is assigned to the vehicle in question. The vehicle was not improperly parked and I feel that the parking 'charge' notice was nothing but a penalty and exceeded the appropriate amount.
I would like to appeal this notice on the following grounds:
No genuine pre-estimate of loss
No loss incurred to landowner
No contract with keeper
Unlawful penalty charge
No authority to issue contracts
Unfair and Unreasonable Terms
No Genuine Pre-estimate Of Loss
There was no parking charge levied, the car park is “free”. On the date of the claimed loss there was unused capacity, with parking spaces available and there was no physical damage caused. There can have been no loss incurred to the landowner arising from this incident. Neither can the operator lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed.
This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.
The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges of Ј7.00 for all day parking. This is all the more so for the additional charges which the operator states, accrues after 35 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment and a further 75% upon an unsuccessful appeal that it was unreasonable to begin with.
No Contract with Keeper
There is no contract between the operator and the keeper, even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.
Unlawful Penalty Charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).
The operator is either charging for losses or it is a penalty/fine.
The BPA Ltd was warned about such charges being unenforceable by the Office of Fair Trading in 2013. The information that the Office of Fair Trading gave to the BPA Ltd on parking charges expressed the view that a parking charge will not automatically be recoverable, simply because it is stated to be a parking charge. It cannot be used to create a loss where none exists. It will not be recoverable if the court finds that it is being imposed as a penalty. If a parking charge is imposed for breach under a contract, in order for it to be recoverable as liquidated damages, the court will need to be satisfied of a number of matters, including that it represents a genuine pre-estimate of the loss incurred and that it meets the requirements of applicable consumer protection legislation, for example the Unfair Terms in Consumer Contracts Regulations 1999. The OFT also expressed the view that the court will also need to be satisfied about who the consumer was contracting with and that this is the party bringing proceedings.
Contract with the Landowner – Not Compliant with the BPA Code Of Practice and / Or No Legal Status to Offer Parking or Enforce Charges
The operator does not appear to own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letter, the operator has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.
I require the operator to provide a full copy of the actual contemporaneous, signed & dated, unredacted contract with the landowner.
Contracts are complex documents, so a witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original showing the points above is the only acceptable items as evidence that a contract exists and authorises The Operator the right, under contract to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.
I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.
I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. 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 was that 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.
Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations 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) states that: 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) 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.
Unreasonable
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: 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.”
Summary and Conclusion
As stated previously the vehicle was correctly parked in the assigned parking space and evidence of a valid permit was provided to confirm this, the operator is yet to provide a breakdown of the ‘costs’ they believe relate to a genuine pre-estimate of loss and have not provided evidence of a contract between themselves and the legal owner or management company acting for the freeholder, with consideration of the points raised, I therefore respectfully request that my appeal is upheld, that the charge is dismissed in full and that the operator cease all further actions in relation of said charge.
Yours sincerely,
xxxxxxxxxxxx
(For the avoidance of any doubt the x's are where my signature will go and not an attempt to win the assessor over with a display of affection)
Best answers:
- Welcome to MSe, a quick scan through the above seems ok, and youve obviously spent some time on research etc.
A few questions, you say you have an assigned space, assigned by what and who?
Do you have an agreement that allows to you use the parking space?
Is there any mention of this in your lease agreement? rental? - Hello Half_way and thanks for the welcome!
I rent the space from a parking space rental company who have advertising prominently displayed on the exterior walls of the car park, the rental company is not affiliated or linked with the parking enforcement operator who issued the PCN. The rental company took relevant details about the vehicle (make, model, colour, reg number) before issuing the parking permit which is for a specific numbered space within the car park.
The vehicle was parked in the correct space and the permit was displayed as requested when the vehicle was parked but unfortunately the permit became unstuck from the windscreen prior to the visit from the warden who works for the parking enforcement company.
The T's & C's of the parking enforcement operator weren't included in any of the communication from the rental company, they just stated that the permit should be displayed at all times to ensure that the vehicle wasn't subject to parking enforcement activities, they also state that they don't have any control over the parking enforcement and are unable to cancel tickets under any circumstances.
It surprises me (although maybe it shouldn't) that common sense has seemingly been ignored, the vehicle has been parked in a secure, gated car park in the same space with a valid permit on display for 4 months, is it unreasonable to expect that the warden should have taken this in to account and endeavoured to limit costs by waiting to see if the permit was back on display during their next visit?
A photograph of the vehicle with the valid pass clearly displayed was submitted to the parking enforcement operator less than 24hrs after the PCN was issued, I assumed this would lead to the PCN being rescinded but they decided to uphold it an offer a reduced charge.
What would your experience suggest? Should I pay, ignore or challenge?
All the best,
Trent - Hi all,
Just giving this a bump, could anyone advise me on the above?
Many thanks,
Trent - You seem to have it all sorted, although I am surprised that the parking rental company have no control over the PPC, who contracted with the PPC to patrol the area?
- Hi The Deep,
After further investigation it appears that the parking rental company only have a small number of spaces within the car park, so I assume the PPC was contacted by the car park management company or residents committee.
Good to hear that you think I've got it sorted, I was looking for some reassurance that I've got a reasonable chance of success with POPLA before risking being able to pay the reduced fee to the PPC.
Many thanks,
Trent
- 296 reads