Parking Charge Notices v. Penalty Charge Notices
This hub is a guide to what to do if you receive a Parking Charge Notice. These are issued by Private Parking Companies such as ‘Excel’, ‘G24’, ‘MET Parking’ etc. to vehicles parked in private car parks.
They should not be confused with Penalty Charge Notices issued by Local Authorities.
If you receive a PCN from your Local Authority, you should be aware that these ARE legally enforceable, and you may end up in Court if you fail to either pay or lodge an appeal. On the other hand, a PCN issued by a PPC is NOT legally enforceable (despite what they may tell you). PPC’s know this, but rely on the fear-factor to scare people into paying.
Parking Charge Notice paperwork
PCN’s are issued in 2 ways. The first way is via a ‘ticket’ on the screen (just like a Council-employed Civil Enforcement Officer would do), and the second (and most controversial) is via the post to the vehicles’ registered keeper.
A lot of PPC’s like to issue ‘tickets’ via the post, especially when using ANPR technology to log vehicle movements on and off their contracted sites. The reason being that if a driver visits the same site twice within a short time, they can ‘edit-out’ the log of the vehicle leaving after the first visit, and entering on the second visit, thus making it seam that the vehicle has ‘overstayed the maximum allowed time’.
It is also common practice to produce ‘tickets’ that resemble the official PCN’s issued by Local Authorities. PPC PCN’s that bear a resemblance to those issued by L/A’s are issued in breach of ‘The Administration of Justice Act 1970, Sec. 40, s/sec. D’ (see below), and as such, can be handed to the Police as evidence.
Do I have to pay a PPC PCN?
The only recourse for a PPC in Court would be a charge of trespass. The Court could only award damages equivalent to the financial loss caused by the damage to the property caused by you. They would also have to prove you had no right of access.
Given that, as a shopper, you would be using the store’s car park, a Court would deem that you did have a right to enter and use the car park provided, thus rendering the charge of trespass un-enforceable.
PCN’s issued for parking in Disabled/Parent & Toddler Bays are also unenforceable. This being due to the fact that in private car parks neither type of bay has any legal existence, and is provided purely as a courtesy. As an aside, there is a debate raging at the moment as to whether the requirement to display Blue Badges when parked in L/A owned car park Disabled Bays (which ARE legally protected) actually breaches the Equality Act 2010 itself, as it discriminates against those with temporary disabilities who do not qualify for Blue Badges.
It is worth noting that if a carpark is ‘free for 2 hours’, but there is no means to pay for further parking, then the maximum sum a PPC could be awarded in Court (should it go that far) is £0.00. However, if the carpark is a Pay and Display carpark, then the costs awarded would have to reflect the lost revenue from using the carpark without paying.
If the PPC is also the owner
If the car park is actually owned by the PPC, then they can issue & enforce an invoice. Colchester University Foundation NHS Trust sacked their facilities management contractor back in 2012 & started running everything directly themselves. As a result, they can (& will) do Court. However, their PCN’s are for only £10 which is the exact same charge as you would pay for a) 24 hours parking, or b) if you lose the ticket you collected from the barrier on the way in.
As far as I am aware, CUFNHST are the only Hospital to correctly operate a penalty charge scheme.
Parking bays on leasehold developements
This is an interesting one. A lot of leasehold devlopements employ PPCs to patrol their developement in order to deter non-residents from parking there. These parasites insist on each resident having a permit displayed within the vehicle and will ticket any without.
The only trouble with this, is that the parking bay may be allocated to a specific address by way of a clause in the lease. Unfortuanately for the PPC, the lease will always trump the agreement in place between the developement’s management company and the PPC. What this means in practice is that as the owner of the parking space as defined in the lease, you can actually write to the PPC informing them that as the owner of the land, you are withdrawing from the permit scheme and that should any employee of the company set foot on your land, then you will sue both the PPC and the management company for trespass.
Appealing a PPC PCN
As of 1st October 2012, the introduction of the ‘Protection of Freedoms Act’ brought with it a change to the Law that put in place the need for an independent appeals system (known as ‘Parking On Private Land Appeals service’ (or POPLA)) to handle appeals against PPC PCNs.
If you receive a PCN, then your first port of call is to appeal to the PPC directly. If they accept your appeal then that will be the end of that. However, if they reject it, they should give you a POPLA code. This code is needed to be able to use the POPLA service.
Advice on a number of motoring forums is to submit a ‘soft’ appeal to POPLA .
Basically, give the bare minimum of info.
A large number of PPCs are still trying the Court route even if they lose the POPLA appeal.
Please be aware of this, as if you receive Court papers, you need to obtain good advice on creating your defense submission (there are users on Pepippoo & MSE who will willingly do this for you). It is at this point you will be submitting a full defense (including reference to case Law). The forums mentioned, have had a great success putting together defense bundles so should be used fully. Just make sure that you do not give away any info that would allow you or the driver to be identified by a PPC grazing the forums for info. (be aware that the PPC’s governing body, the ‘BPA@ have set up Google Alerts on at least one forum to warn them when one of their members is mentioned).
What can I expect from a PPC?
It is not uncommon for a PPC to send a series of letters threatening to –
Obtain a CCJ – They can’t do this, as it is not a criminal matter
Seize the vehicle – Again, not a legal option
Send the Bailiffs round – As above
A PPC will have gone to a lot of trouble to locate the vehicles registered keeper in order to issue an invoice for whatever amount they feel they can get away with charging you.
The best advice (backed-up by a motoring Lawyer on BBC’s Watchdog program (see useful links below)) is to simply ignore any correspondence from the PPC. Do NOT communicate with them in any way whatsoever.
Some PPC’s will send you Court papers as a last resort. If you receive such a Court summons, give the Court a quick call just to check if it is genuine. This is because some PPC’s have been known to use a template Court summons on which they simply alter the date and defendants details whilst keeping the same court number etc. However, it has also been known for a PPC to actually send a real court summons in the hope that the defendant treats it as a fake, and fails to turn-up in court, thus, the PPC will win by default.
It is not uncommon for a PPC to send up to 7 letters before passing-it on to a debt recovery agency (usually but not always, owned by the same directors as the PPC). These will resort to such tactics as sending people to your door posing as Debt Collectors (These, unlike Court appointed Ballifs, have no right of access across your threshold).
Some of the PPC’s use a Solicitor named ‘Graham White’ (no connection with ‘Graham White and Co., a highly respected firm of Solicitors). This Solicitor threatens court action, but has never taken anyone to court. He also uses the name ‘Roxburghe Parking’.
What if the Court Summons is genuine?.
If you unlucky enough to receive a genuine Court Summons, then you MUST defend yourself. There is plenty of genuine help available on the internet. The best sites for info on all things motoring are listed in ‘Useful Links’.
How do they get your details ?.
PPC’s usually contact DVLA and pay the princely sum of £2.80. In return, DVLA will send them the details of the registered keeper (who may not actually be the person who drove the car into the carpark). It is thought (but yet to be proven) that DVLA may well be in breach of the Data Protection Act as it is unclear as to whether or not they are exempt from Section 10 of the Act.
DVLA have declared that, by simply sending-in a signed V5 when registering a vehicle, the registrant has given them the required authourisation to sell-on your details to anyone who wants them.
From 1st October 2012, the UK sees the introduction of the ‘Protection of Freedoms Act’. Under s.56 ss.4, the Act will make the registered keeper liable for the ‘speculative invoice’.
Other ways used to obtain evidence are by trawling motoring forums (and even troll-posting on them) or by obtaining copies of print/audio/video media in which a person has complained about the invoice they got for just simply turning-round in the carpark. Such public admissions are like finding the Holy Grail to these guys. If you do go to the press, at least make sure to use a false name and DO NOT let the press take your photo. The less ‘evidence’ you give linking yourself to the ‘offence’, the harder it is for them to build a case.
At least one PPC (Parking Eye) has recently advertised a vacancy for an ‘Enforcement Officer’ who’s role involves ‘Using information posted on blogs & forums in respect of gathering evidence’. It is therefore very important when posting on blogs & forums NOT to give to much detail.
Even posting that the ‘ticket was issued for overstaying the time in Tesco Ipswich during a visit in September’ could well be enough to allow a PPC investigator to pin-down a specific ticket. Also remember that even mentioning times may be enough to furnish the PPC with enough to try their luck in Court (not that they would win when you consider the ‘VCS Parking Ltd v. HMRC’ case anyway).
I’ve already paid, what can I do now ?.
If you have already paid, you can claim your money back. You need to follow these rules –
First off, send both the PPCand the landowner what is known as a ‘Letter of intended action’. This will give them a set time-period in which to pay you back your money along with expenses. This needs to go by 1st Class Recorded Delivery.
Once the date given in the letter of intended action has expired and, assuming they have not paid-up, you need to begin Court action. This is easier than it appears. It can all be done online at ‘MoneyClaimOnline’. The cost is £90, but this can be added to your expenses.
If they decide to still not pay and it gets to Court, make sure you turn up, if you don’t, you will lose by default.
Why take action against the landowner as well as the PPC ?. Well, most PPCs own little or no assets, preferring instead to rent their computers and vehicles from a parent company. They are then free to collect as many CCJs as they wish without the Court Bailiffs being able to seize any tangible assets to sell.
It is not unusual for a PPC to liquidate their company and reform it under a slightly different name in order to avoid paying CCJs.
A landowner on the other hand, will be very likely to have tangible assets that the Bailiffs can seize to cover the amount claimed, so they are highly likely to pay-up. If enough people take them to Court, they may even sack the PPC and stop harrassing motorists.
If you want to really cause both landowner and PPC grief, why not check out my other Hub
If it ever gets to Court
If, on the off-chance, the PPC gets brave and takes you to Court, you do have some legal precedents to use in your defense.
One of the most popular is Dunlop Pneumatic Tyre Co. Ltd. Vs. New Garage & Motor Co. Ltd., House of Lords, 1914. In the case, Dunlop alledged it’s tyre retailer New Garage was in breach of its contract in which it agreed not to sell Dunlop tyres for below the price set in the contract and if it did, the retailer would be liable for a charge of £5 to cover ‘liquidated assets’. Dunlop won the case, New Garage however, won the appeal. Dunlop appealed this to the House of Lords.
The House of Lords held the clause was not a penalty, and merely a genuine preestimate of Dunlop ’s potential loss, and so Dunlop could enforce the agreement. Lord Dunedin set out the following principles.
“To assist this task of construction various tests have been suggested, which if applicable to the case under consideration may prove helpful, or even conclusive. Such are: ( a ) It will be held to be penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach. (Illustration given by Lord Halsbury in Clydebank Case.[2]( b ) It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid (Kemble v Farren[3]). This though one of the most ancient instances is truly a corollary to the last test. Whether it had its historical origin in the doctrine of the common law that when A. promised to pay B. a sum of money on a certain day and did not do so, B. could only recover the sum with, in certain cases, interest, but could never recover further damages for non-timeous payment, or whether it was a survival of the time when equity reformed unconscionable bargains merely because they were unconscionable, – a subject which much exercised Jessel MR in Wallis v Smith[4] – is probably more interesting than material.( c ) There is a presumption (but no more) that it is penalty when “a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage” (Lord Watson in Lord Elphinstone v Monkland Iron and Coal Co[5]).
On the other hand:
( d ) It is no obstacle to the sum stipulated being a genuine pre-estimate of damage, that the consequences of the breach are such as to make precise pre-estimation almost an impossibility. On the contrary, that is just the situation when it is probable that pre-estimated damage was the true bargain between the parties (Clydebank Case, Lord Halsbury; Webster v Bosanquet, Lord Mersey[6]).
Turning now to the facts of the case, it is evident that the damage apprehended by the appellants owing to the breaking of the agreement was an indirect and not a direct damage. So long as they got their price from the respondents for each article sold, it could not matter to them directly what the respondents did with it. Indirectly it did. Accordingly, the agreement is headed “Price Maintenance Agreement,” and the way in which the appellants would be damaged if prices were cut is clearly explained in evidence by Mr. Baisley, and no successful attempt is made to controvert that evidence. But though damage as a whole from such a practice would be certain, yet damage from any one sale would be impossible to forecast. It is just, therefore, one of those cases where it seems quite reasonable for parties to contract that they should estimate that damage at a certain figure, and provided that figure is not extravagant there would seem no reason to suspect that it is not truly a bargain to assess damages, but rather a penalty to be held in terrorem. (source – Wikipedia)
Other cases that can be brought to defense include – The Unfair Contract Terms Act 1997 which can be used to declare that the wording on the signage is so vague as to fail to form a contract.
There have been some cases of late that really help the motorist win in Court. The best one is ‘VCS Parking Ltd v. HM Revenue and Customs’ (see link) in which it was argued by VCS that they had the right to act on behalf of the landowner in establishing a contract between the landowner and the land user. This case was held in the ‘Upper Tier Tax Tribunal’ at which Judges Roger Berner & Nicholas Aleksander decided that VCS did not have such rights as they could find no Law in the UK that allowed for this and gave VCS until June 17th 2012 to ptove them wrong (they didn’t). The case makes for good reading.
Interesting snippets.
Martin Cutts gives the BPA a good kicking on their own patch
Martin Cutts, of the Plain Language Commission, was invited to give a speech at the ‘ Parking Review Enforcement Summit 2012’ in London. This event was attended by people from both the public and private parking enforcement industry, including the new head of the BPA.
What the organisers had failed to realise was that Martin had recently hammered one of their members in Court and had appeared on the BBC’s ‘Watchdog’ program to talk about it. He was asked to provide a copy of his speech prior to the summit. He refused. After he delivered his speech, there was absolute silence in the room. To find out why, read his speech in its entirety HERE and judge for yourself what the PPCs made of it.
Disabledmotoring.org
This website supposedly offers help to drivers with disabilities. However, the information given regarding tickets issued by PPCs is totally incorrect. This stems from the fact that of their 20 corporate sponsors, 13 are PPCs. This generates a massive conflict of interests as these scum are using a legitimate charity to suck-in and lie-to those most in need of advice.
With all their false info, its no wonder they are losing members at an alarming rate. The charity is running at a yearly-loss so may not be around much longer.
Aintree NHS Trust and Trethowans.
In the Tax year 2010/11, Aintree NHS Trust used Trethowans to chase and recover £8,500 of un-paid parking ‘invoices’ at a cost to the trust of £160,000. In one case, the Judge through-out the claim, leaving the Trust open to a counter-claim for expenses incurred in defending the case. The legal cost to the trust – £1,600+. Was it worth it ?. Go figure.
ASDA and ‘Town and Country Parking’.
Despite the fact that UK Civil Law permits that any claim for damages caused by trespass may not exceed the cost of rectifying the damage and pursuing the claim, ASDA answered a FOI request by stating that they split the profits made from the invoices issued with TCP and that they (ASDA) had actually donated £120,000 of this profit to charity. As they are barred by Law from making a profit on these parking invoices, how come they donated that much from the profits made on the parking operation?.
5 PPC operatives jailed
In the Midlands, 5 PPC operatives have been sent to jail for ‘blackmail and extorting money with menaces’. Thats 5 down and a few hundred to go.
UKPC have a bad day in Court.
UKPC, a virilant PPC, had a bad day in Court today (10/04/12). They took the registered keeper of a car to Court for non-payment of a ‘Parking Charge’. They lost. Interestingly, they had also taken the R/Ks spouse to Court over the SAME invoice and had lost that one as well. Hence then trying to pin their hopes on a 2nd case against the R/K. During the case, the Judge referred to the fine as an ‘unenforceable penalty’.
Excel/VCS – get their arses kicked by Judge.
After the boss, Simon Renshaw Smith appeared in Scunthorpe’s local rag claiming he was going to sort-out the parking issues in some local private carparks by taking non-payers to Court, he must have felt well peeved when a case went slightly wonky. The case, VCS Parking v. HM Revenue and Customs, held in the ‘Upper Tax Tribunal’ ( a Court of Record on the same level as the High Court) revolved around whether the PCN was a ‘Fine’ (these are VAT-exempt) or a ‘Business invoice’ which DOES incur VAT.
The Judges, Roger Berner & Nicholas Aleksander, ruled that neither Renshaw-Smith nor his company had any right to issue proceedings against the defendant either in the name of, or as representative of, the landowner. So, in other words, as the PPC has no right in Law to enter into a contract with a land user on behalf of the landowner, then there can be no breach of contract as one doesn’t actually exist. A spetacular own goal by the PPC there me thinks.
ALDI receive fine for breaching planning condition over parking.
According to the Times, Aldi’s Portslade store was fined £600 + £1215 costs for breaching conditions allowing 3 hours free parking. They reduced the free parking period to just 1 hour in breach of the original condition..
Read the full article HERE.
ParkingEye upset High Court Judge
Since Capita purchased ParkingEye back in 2013, they have been issuing Court summons at an eye-watering 1,000 per month. One High Court Judge has decided he has had enough of the abuse of the County Court system and promptly stayed all ParkingEye cases in the East Anglia and has set a date of April 4th 2014 at which he intends to settle the matter of the legallity of the claims once and for all.
He had originally set a date of 12th March, but had to re-schedule the case after an employee of Capita phoned the ParkingEye lawyers posing as the Clerk of the Court and informing them that the case had been postponed. As a result, ParkingEye’s Barrister did not turn up to Court.
A 42 year old Manchester man has since been arrested and bailed in conection with the phone call and may well face criminal charges under the ‘Communications Act 2003’.
Administration of Justice Act 1970.
This is the relevant section of the act.
Part V
Miscellaneous Provisions
40 Punishment for unlawful harassment of debtors.
(1) A person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under a contract, he-
(a)harasses the other with demands for payment which, in respect of their frequency or the manner or occasion of making any such demand, or of any threat or publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation;
(b)falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;
(c)falsely represents himself to be authorised in some official capacity to claim or enforce payment; or
(d)utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not.
(2) A person may be guilty of an offence by virtue of subsection (1)(a) above if he concerts with others in the taking of such action as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment.
(3) Subsection (1)(a) above does not apply to anything done by a person which is reasonable (and otherwise permissible in law) for the purpose-
(a)of securing the discharge of an obligation due, or believed by him to be due, to himself or to persons for whom he acts, or protecting himself or them from future loss; or
(b)of the enforcement of any liability by legal process.
(4) A person guilty of an offence under this section shall be liable on summary conviction to a fine of not more than £100, and on a second or subsequent conviction to a fine of not more than £400.
Parking in Rail Station car parks
Please be aware that in certain cases, a Railway Station car park may be patrolled by a PPC, but unless the car park in question is covered by byelaws laid-down in the ‘Railway Act’, the ticket is still non-enforceable.
Where the car park is covered by the ‘Railway Act’, then a PCN can be issued in accordance with Section 14 of said Act.
Not all Station car parks are covered by the Act. It is down to you as an individual to contact the station and find-out.
Complaining to the land owners.
If you wish to complain to the landowners direct, then here are contact details in alphabetical order –
Aldi – 0179 3836313 – Parking Team
Get your own back.
If you want to really cause both the PPC and landowner grief, then it is easier than you think.
Every carpark will have to have had planning permission from the Local Council before being built. It will also have had a rateable value set on it by HMRC. It is therefore worth checking the PP for conditions applied to the permission by the Council.
Chances are, there will be a condition stating that parking must be free. As there is the implication of a charge for staying beyond a set time period, this would be a breach of the planning conditions and so you would be within your rights to report the carpark owner for breaching said planning conditions. You must remember to include the planning number and refer to the relevant section (and sub-section) of the planning permission. It is also worth getting others to also contact the Council with regards to raising the same complaint as the more people who point out the breach, the bigger the chance the Council will act.
Contact HMRC to check the rateable value of the carpark. If the carpark is free parking, it will be zero-rated. However, as there is a charge to pay if you stop beyond a set time, the HMRC will be more than interested in investigating the chance to re-rate the carpark to the same level as a proper pay & display carpark (and backdate it to when the carpark first opened) as it means more money for the Govt. This has been known to trigger a landowner to get shot of the PPC.
Acknowledgements
The following sites were used in the research of this Hubpage –
www.moneysavingexpert.com – Motoring forum.www.pepipoo.comwww.legislation.go.uk – Admin. of Justice Act 1970.
, Private Parking Company PCN information www.ozeldersin.com bitirme tezi,ödev,proje dönem ödevi