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Government Guidance on PPCs
Duncan112
post Thu, 13 Sep 2012 - 17:18
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This appears to have just been published, apologies if it's already on the site

http://assets.dft.gov.uk/publications/guid...ing-charges.pdf

FAQ1 appears to provide fertile ground for getting outlandish claims set aside or reduced
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post Thu, 13 Sep 2012 - 17:18
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Gan
post Thu, 13 Sep 2012 - 18:01
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Very interesting

Section 5.3 specifically states that no new liabilities are created

I particularly like that the document makes explicit that the charges for a breach must be a genuine pre-estimate of loss - which scuppers most of the existing terms and conditions

I'd previously thought that win-or-lose the PPC couldn't go to court after a POPLA appeal but if the charges are going to be restricted it will hardly be worth the effort.

The statement that clamping will still be possible if provided for by railway or airport byelaws has answered a recent question.
Wonder if we'll see more aggressive action at these locations
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buttonpusher
post Thu, 13 Sep 2012 - 18:34
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Does not 1.1 go against VCS v HMRC? May have missed it but I cannot see any reference to Anpr camera tickets.

This post has been edited by buttonpusher: Thu, 13 Sep 2012 - 18:40
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DBC
post Thu, 13 Sep 2012 - 18:52
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Charges for breaking a parking contract must be reasonable and a genuine preestimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken.
For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.


So £20 tops at the very most and not the stupid figures demanded by PPCs.

Of course those "admin charges" cannot include the ordinary running costs of the office and staff wages. The PPC has to bear these costs even if no tickets are issued. So it looks as though they can claim very little in actual losses.

This post has been edited by DBC: Thu, 13 Sep 2012 - 22:29
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Speedy2007
post Thu, 13 Sep 2012 - 19:11
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Am I right in thinking that it costs the PPC £27 or so if the driver/owner appeals. If that is true and the sum asked for must be a genuine estimate of loss, it surely cannot ever be cost effective for them to ttry to answer an appeal. Or have I missed something?
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Gan
post Thu, 13 Sep 2012 - 19:30
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From the point of view of the PPC :

If they're a member of the BPA, it makes sense to accept all direct appeals because if rejected there's a good chance that they will go to POPLA and cost them £27 a time

Except for the companies that use ANPR, why not leave the BPA ?
If they're not members they can issue tickets at the existing rates and rely on the high proportion that will be paid.

Membership means that they have to issue half price tickets that are worth less than it would cost them if challenged.
The only benefit is access to the DVLA database that will increase the percentage paid from 65% to about 80%.

Other than a BPA logo to look respectable it has no commercial logic
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bama
post Thu, 13 Sep 2012 - 22:05
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QUOTE
This means charges must compensate the landholder


so does the landowner get the cash from charges ? or does the PPC keep it ?

And if the cash doesn't go to the landowner is it a valid (lawful) charge ? I say no it isn't.


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Which facts in any situation or problem are “essential” and what makes them “essential”? If the “essential” facts are said to depend on the principles involved, then the whole business, all too obviously, goes right around in a circle. In the light of one principle or set of principles, one bunch of facts will be the “essential” ones; in the light of another principle or set of principles, a different bunch of facts will be “essential.” In order to settle on the right facts you first have to pick your principles, although the whole point of finding the facts was to indicate which principles apply.

Note that I am not legally qualified and any and all statements made are "Reserved". Liability for application lies with the reader.
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axeman
post Thu, 13 Sep 2012 - 22:17
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after reading the document it states the charge must be a true estimate off loss (plus admin costs) so when the ticket is first issued it can only ask for the lost parking charge as no admin costs have been accrued, any other sum added must therfore be deemed a penalty. If an offer of the lost parking charge (say between £1 and £5) is offered immediatly can they then start adding admin costs to boost the charge or if it goes to appeal can the claim be limited to the actual loss due to the offer made?


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The Slithy Tove
post Fri, 14 Sep 2012 - 06:37
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QUOTE (bama @ Thu, 13 Sep 2012 - 23:05) *
so does the landowner get the cash from charges ? or does the PPC keep it ?

And if the cash doesn't go to the landowner is it a valid (lawful) charge ? I say no it isn't.


This was the crux of VCS v HMRC, I believe. The landownder effectively did get the cash, but then handed it all back to VCS as payment for managing the car park. The court decided that in this case, VCS should have been charging VAT, but weren't.

QUOTE (axeman @ Thu, 13 Sep 2012 - 23:17) *
after reading the document it states the charge must be a true estimate off loss (plus admin costs) so when the ticket is first issued it can only ask for the lost parking charge as no admin costs have been accrued, any other sum added must therfore be deemed a penalty. If an offer of the lost parking charge (say between £1 and £5) is offered immediatly can they then start adding admin costs to boost the charge or if it goes to appeal can the claim be limited to the actual loss due to the offer made?

My thoughts exactly. In a free car park, losses for overstaying are zero, so why should the RK pay the "admin" costs for the PPC chasing a zero loss?

This post has been edited by The Slithy Tove: Fri, 14 Sep 2012 - 06:37
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anon45
post Fri, 14 Sep 2012 - 07:27
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As far as I can tell, the Welsh Assembly Government has still not commenced section 56 and Schedule 4 in relation to Wales, so, unless and until such a commencement order is made, RK liability will not apply in Wales (but the clamping ban will!)

At the moment, the DfT guidance is, in my opinion, misleading in stating that RK liability will apply "in England and Wales".

If this remains the case after 1 October, then any 'officially endorsed Pepipoo advice' should make this distinction clear, and continue to advise "ignore" (except for complications involving hire cars/ university/ employer) for Welsh (and Scottish!) private parking cases (why waste the cost of a stamp unnecessarily?)

This post has been edited by anon45: Fri, 14 Sep 2012 - 09:37
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buttonpusher
post Fri, 14 Sep 2012 - 07:56
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So, are there VAT ramifications for the landowner as well when this goes through.
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DBC
post Fri, 14 Sep 2012 - 08:49
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As the aspect of pre-estimate of loss is being incorporated into the BPA guidelines, then if it can be shown that the figures demanded by a PPC are just arbitrary and not an actual loss, then that would be a breach of the guidelines and puts the PPC in line for sanctions by the BPA.
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Gan
post Fri, 14 Sep 2012 - 08:52
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I'm increasingly suspecting that someone in Government has been annoyed by the misleading BPA data on court claims and has taken a surgical revenge
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Lynnzer
post Fri, 14 Sep 2012 - 12:06
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Just adding a few words so I can subscribe for updates to the topic.
I guess things are still very much in favour of the motorist at this stage.
I wonder, when a loan or hire car is on a supposed contract and they are presented with a ticket whether there's still a right to protection from them divulging the drivers name under the FOIA.

Anyway, the usual garage or hire company's contracts are riddled with faults such as directly taking a payment from a known Visa card. Doing it this way still denies the hirer an opportunity for appealing the case before settlement of a charge.
I also wonder about those owners who have the car registered to a PO Box address.


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Hotel Oscar 87
post Fri, 14 Sep 2012 - 12:15
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The BPA will of course claim that this will assist them in their objective of professionalising the private parking "industry" when all it will do is to secure the eventual departure of the smaller companies and hand the market over to the multi-nationals who are in the best position to exploit narrowed margins using technology. The real gainers here are the likes of NCP, APCOA and TCP.

My reading of the definition of "landholder" and the use of the term "properly authorised by the landowner" appears to make full provision for the VCS v HMRC judgment. I will be particularly interested to see how this plays out as I remain unconvinced that in such places as large retail parks that the managing agents will have the authority to vest sufficient interest in the PPC to be VCS compliant.

With this amount of documented restriction to kick against it is now that we should be redoubling our efforts to ensure that PPC's feet are held to the fire; that the BPA are challenged at every remove to enforce their codes of practice and the DVLA are not permitted to rest in respect of the "reasonable cause" argument - the larger proportion of this guidance appearing to help define this.

Although I was not a nay-sayer and thought in overall terms POFA had a neutral impact I find myself being persuaded that it might well have a positive one.


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Alexis
post Fri, 14 Sep 2012 - 12:57
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QUOTE
My reading of the definition of "landholder" and the use of the term "properly authorised by the landowner" appears to make full provision for the VCS v HMRC judgment.


I'm not sure I agree. The issue is not necessarily solely one of authorisation per se. All PPC contracts with landowners allow a) access to the land; and b) permission to install signage, which by logical extension attempts to form a contract between the PPC and the motorist.

You could argue that 'proper authorisation' is defined, according to VCS v HMRC, as meaning granting proprietary interest in the land e.g. by leasing it.

There may be authorisation in that the landowner allows the PPC to attempt to offer a contract, but the motorist is not bound by it because the landholder only has a limited licence and cannot make such an offer in the first place.

The text in the DoT document just seems to make reference to the fact a PPC needs a contract with the landowner, as opposed to a PPC that has just wandered onto some waste ground and installed signage. This has always been the case.

This post has been edited by Alexis: Fri, 14 Sep 2012 - 12:58
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Lynnzer
post Fri, 14 Sep 2012 - 13:14
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QUOTE (Hotel Oscar 87 @ Fri, 14 Sep 2012 - 13:15) *
Although I was not a nay-sayer and thought in overall terms POFA had a neutral impact I find myself being persuaded that it might well have a positive one.

I agree that it does have some positive aspects.
As already mentioned, it will force the operators of car parks to show how charges are calculated and as many car parks only place a charge for overstaying a free period it would be interesting to see how this pans out. This should be the first thing anyone ticketed should do; ask for a copy of the charging breakdown to show the actual loss suffered and an explanation of how it suffered.

This whole new Act may well put landowners in a position whereby they have to start charging for use of the car park from moment of entry so as to be able to show a reasonable loss for overstay of a given period. Even then, parking on a side road on double yellows or in a hatched box, and yes even in a Disabled bay while not displaying a blue badge the right way up, couldn't possibly result in any charge as supposedly the person so parked would have made the necessary charge for use of the car park anyway. Such a move would alienate potential customers to the extent that they would lose more income than they would gain from parking ticket charges I guess.
In the likes of the Metrocentre, almost all of the ticketing money they make are from old ladies parked in disabled bays with the badge upside down.
As is already recorded in this forum I've taken a keen interest in this activity by putting PPP cards in the yellow envelopes on peoples windscreens advising them to visit the forum for advice before answering the ticket.
I will renew my efforts with more vigour now as the charges they apply are absolutely 100% punitive.
As it stands, and I guess you're right on this one, the margins will be so much smaller for the parking enforcement companies that it will kill off a lot of the smaller ones and prevent others taking the trade on.

I'm preparing a standard letter to complain to the BPA against any company I come across who are applying a charge for parking in a place or such a manner, where no parking charge is required to park there in the first place. There'll be a lot of these for the foreseeable future.


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DBC
post Fri, 14 Sep 2012 - 13:27
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As a pre-estimate of loss can vary from case to case then any PPC sign or paperwork that mentions a fixed sum of money must be wrong. That's going to be difficult for them. How on earth are they going to word their signs?
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Hotel Oscar 87
post Fri, 14 Sep 2012 - 13:31
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QUOTE (Alexis @ Fri, 14 Sep 2012 - 13:57) *
QUOTE
My reading of the definition of "landholder" and the use of the term "properly authorised by the landowner" appears to make full provision for the VCS v HMRC judgment.


I'm not sure I agree. The issue is not necessarily solely one of authorisation per se. All PPC contracts with landowners allow a) access to the land; and b) permission to install signage, which by logical extension attempts to form a contract between the PPC and the motorist.

You could argue that 'proper authorisation' is defined, according to VCS v HMRC, as meaning granting proprietary interest in the land e.g. by leasing it.

There may be authorisation in that the landowner allows the PPC to attempt to offer a contract, but the motorist is not bound by it because the landholder only has a limited licence and cannot make such an offer in the first place.

The text in the DoT document just seems to make reference to the fact a PPC needs a contract with the landowner, as opposed to a PPC that has just wandered onto some waste ground and installed signage. This has always been the case.

Thanks Alexis. You are correct. My comment was poorly worded and what I should have made clear was that I believe that s1.1 could be argued to make provision for the VCS judgment if one was to place the emphasis on the word "properly authorised". The world has moved on since the requirement for a limited licence (to install signs etc) and in 2012 to be "proper" one must be VCS compliant surely?


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Lynnzer
post Fri, 14 Sep 2012 - 13:56
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Thinking out aloud again, if we take any charge made for any contractual contravention, it must exclude any commission element paid to the car park supervising company (can I call them [Mod edit] again please. So much less to write and everyone knows what it means).
Any money kept by the CPSC cannot be a loss to the landowner, and neither could any money paid for their services represent a loss either.
So, if a landowner gets say £100K a year for contractual charge payments and pays £45K to the [Mod edit] as a service charge of sorts, then his legitimate charges should reflect the net amount he gets, ie £55k. Putting this into individual charges a £30 ticket would become £16.50.
I see a lot of ground for an unusually busy appeals panel here and if the [Mod edit] do have to pay for the services of an independent appeals panel they're on a very sticky wicket, methinks.
Reason for edit: Don't play silly sods with the forum rules


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