Parking Eye - Popla Appeal - I won!!!!

[FONT=&quot]Just to let you know and hopefully help anyone in a similar situation.[/FONT]

[FONT=&quot]I unintentionally overstayed at the M6 services at Charnock Richard by 40 odd minutes and got through the post a demand for payment of £100 from Parking Eye. As I thought this amount far exceeded the loss to the landowner who I should have paid £10 to for the excess parking past 2 hours I thought I would appeal via POPLA. I have just received my email telling me my appeal was upheld. I have attached my initial letter to Parking Eye which was met with an outright refusal, my defence letter sent to POPLA and the email confirming my result. I also have copies of the submission from Parking Eye but it is some 40 pages long let me know if you would also like me to scan that in. [/FONT]

[FONT=&quot]Hope this helps someone at least.[/FONT]


[FONT=&quot]Submission to POPLA:[/FONT]
Please be aware that this notification is made on the understanding that should you read it you will be agreeing to a contract for payment of a sum of £30 with a reduction of £15 for payment within 14 days. The service offered is for general education regarding parking matters.
____________________________________________________________________________________________________________________________________________________________________________________________________________________

Sir,

Your Ref PCN Number Vehicle Reg (Popla Form Attached)

I appeal against the decision from Parking Eye on the basis that the parking charge (ticket) exceeded the appropriate amount. If any charge is due at all this should amount to £10.00.

On my appeal to Parking Eye I made it clear to them that I had doubts as to the reason for the charge laid against me. I asked them to clarify whether the ticket was due to a supposed contractual breach or for trespass. Since the remedy for rectification of the alleged misdemeanour is dependent on which circumstance it was supposed to be applied against they have failed to enlighten me as to what specific point of appeal I should follow.

Parking Eye manage the car park on behalf of Welcome Break and act as an agent for the landowner, who by his right of land ownership can only impose a payment in respect of the actual losses incurred by that party against someone who has trespassed on the premises, albeit unintentionally.

Welcome Break are not members of the BPA thus are not bound by the BPA code of practice so the imposition of terms and conditions by Parking Eye, on behalf of Welcome Break to their own pecuniary advantage is beyond their remit.

Parking Eye cannot set a separate term or condition for the use of the car park themselves or impose any parking charges based on the BPA Code of Practice without having a separate condition within their own client contract to offer parking to visitors at a higher price. I'm assuming they have that right otherwise they would be in severe non compliance to the BPA Code of Practice which may well impact upon their continued ability to access the DVLA database for registered keeper details. However the law of contract or tort of trespass would apply in either of these cases anyway.

Since the car park is a pay facility for over 2 hours use, even though there was a misunderstanding as to the extent of the operational hours, the loss incurred by the landowner is a matter of the time spent in the car park without making the relevant payment. This is a quantifiable loss as can be seen on the sign which displays the actual normal parking fee. In this case the amount of the loss to the landowner is £10.00

Even if you feel that Parking Eye has a right to impose the charging structure of the BPA, I remind you that the matter of how charges should be applied is laid out clearly enough within that Code, albeit without any legislative recognition.

This says that the normal parking structure as laid out by the landowner is not covered by the Code of Practice. It must therefore mean that any further charges are for a breach of contract or for trespass on the premises. However I remind you that the BPA has no statutory basis for the application of the imposition or suggested imposition of any charge at all. Anyone can join together with a few friends and give themselves a name as a body of some sort. They can also make out a set of rules or code of conduct which can be heavily weighted in their favour. That doesn't make it an acceptable practice on which to hold to ransom members of society who fail the test of one of their rules. A quick look at the Code of Practice of the BPA finds many anomalies that would be frowned upon in any civil court, and it doesn't need a legal expert to find them either.

The ticket I received from Parking Eye had no reference to VAT shown on it. If it was an invoice for payment of a service contract, it must show VAT details on it, ie, for parking services amount owed £50 + VAT at 20% = £60. Since there is no mention of VAT it must therefore be presumed to be nil or zero rated which would be the applicable rate for a fine or penalty, which of course is non compliant to the BPA Code of Practice itself which states that the use of fine or penalty may not be used. That doesn't legitimise the use of a more convenient term though. If the amount demanded were a contractual charge then it fails the test for that based entirely upon the wording on the ticket. It MUST show the VAT details of the company in accordance with the BPA Code of Practice, and it does not, therefore cannot be a breach of an alleged contractual arrangement.

To make sense of the situation in hand, I find it necessary to consider each aspect separately. First the issue of contract, then the tort of trespass, since it was not explained which act I was being charged for.

It's my submission that this amount cannot be construed as a contractual parking breach. To breach a contract, one must have been formed in the first place.

It's my submission that such a contract was not formed. At no time was it brought to my attention on any sign that I had the right to enter a contract for parking without payment of the relevant parking fee offered by the landowners, for another parking charge set quite separately by Parking Eye.

If such a contract was intended it would have made that clear. There is no offer to park at the location by payment of such a charge, and there is no description of what I get from such a contract, let alone be in a position to enter into a negotiation in order to influence the contractual terms which is also a necessary part of a contract.

If there was an offer of that sort it should have been displayed on the signs saying, more or less, "parking at any time for unlimited and unrestricted periods is £60, including use of disabled bays by non blue badge holders" for instance. It also fails in not describing the extent of the time limit. For instance would such a contract, or the supposed acceptance of it by making a payment for the parking charge notice, extend my right to subsequent periods of parking on future dates without payment of the relevant parking fee, time unlimited? Perhaps it extends the right of placing my caravan there for the year since I have paid a fee for it?

There has to be an offer and acceptance in contracts. A contract can only be made in consideration of the passing or enjoyment of goods or services. I was not offered anything in exchange for the payment imposed.

If you consider this on the basis of parking in a disabled parking bay without displaying a blue badge. If the charge was in respect of a contract, it would need to fulfil the description of contract by actually offering a driver without a blue badge the right to park in a disabled bay upon making the relevant payment. That is not the intended action though is it? Nor is there any means to accept that offer by immediate payment at the location, which is also a necessary requirement.

This is exactly the same situation as mine. I have not been offered the right to park by Parking Eye for payment of a sum of money which is different to that for normal parking. The right to parking had already been extended by the landowners.
That being an irrefutable fact, at what point would a contract to an alternative parking arrangement commence? If a contract for parking had been the true intention it would be in danger of compromising the landowner's intentions. The landowner allows parking for a fee. If the payment has been exceeded that does not mean there is no intention to make a further payment upon return to the car park to make good the shortfall.

Since life follows many complicated twists and turns, what was thought may have been an hours visit may unintentionally become 2 hours. As long as that extra time is paid for direct to the landowner by virtue of whatever payment option he has provided then the driver is fulfilling his obligations. Please also note that on entry to the car park, especially where it is a pay and display one, although that does not necessarily exclude free parking areas, the initial contract is with the landowner who makes his facility available to the driver. Any breach of the landowner's contract is quite separate to the breach of a faux contract with another party who didn't offer the initial one. The offer of a separate contract could only be classed as an attempt to undermine the original offer by the landowner.

If the driver contemplates taking up an offer to park in accordance with the Parking Eye contract, then that option should be mentioned upfront before the payment of the other fee is made so that the driver can choose whichever offer he wishes to take up. A method of making direct payment to accept that offer should be available at the location which would become the point at which the driver has considered the offer and accepted it. Without payment the offer is not accepted.

A further complication to the offer of parking by Private Eye, if any were made at all, would be in the different amounts. Early payment or standard payment or extra for late payment cannot constitute a reasonable basis of a contract. There may be a discount for early payment in a contract and there may be a charge for late payment in accordance with the regulatory structure for that, ie an amount of statutory interest but only when the interest and any penalty charge is in regard to a commercial transaction, perhaps if the vehicle was a lorry delivering goods. Any addition which is shown to be a penalty is really not in compliance to the BPA Code of Practice since that says that the use of the word penalty must not be used., and by implication made as an additional charge.

The parking charge in this instance is actually for not complying with some term or condition, ie is a penalty. It would be difficult to see how any County Court could see any different to that explanation and I would be more than happy to have them rule on that very point if needed, which would probably result in a particularly embarrassing scrutiny of a different finding by POPLA if you decide otherwise.

If you find that a contract had been formed I would expect you to could clarify what service or goods Parking Eye had offered me for the payment demanded. In fact I would insist upon knowing why Parking Eye had offered me the right to park in the first place, since that right had already been made by Grosvenor Casinos.

What Parking Eye has done instead was nothing other than imposing a penalty for non compliance to a condition of parking which may or may not have the backing of Welcome Break. It would be interesting to see how they would explain this in a county court.

Since any charge can only be to make good any financial loss to the landowner, then the amount charged is well above the amount of £10.00 so is punitive by nature which is not likely to be in accordance with the remedy for making good the landowner's loss. No other loss was incurred. In fact I asked Parking Eye to explain the reason for the charge so I could consider what the true loss would likely to have been dependent on the legal definition of the imposed charge, but never received any such explanation.

I have a right to know quite how the charge is made up. This is a basic right of contract and without suitable explanation I do not believe Parking Eye have met a sufficiently high enough standard as the principal party in the contractual application, if indeed they even had the right to make that offer and call it a contract.

My second point of consideration is for the action against the tort of trespass.

Only one party in this property has the right of action against trespass. That is Welcome Break.
Trespass cannot be committed against an agent or management company. It has no landowner rights. Any civil action should be undertaken on behalf of the landowner who has been wronged and for the loss incurred.

Parking Eye has suffered no loss as they are unable to claim trespass in their own name. If they claim to be acting on behalf of their client they have not shown that to be the case since all the signs and the ticket itself tells me differently. They are taking action independently and require payment to be made to themselves. There is no mention of any involvement by their client. They are therefore unable to justify any charge at all. If they had right of occupation or were the landowner they could at least request payment of the amount of £10.00 as recompense for the trespass, however they don't, so they can't.

To give justification as to my calculation of the £10.00, beyond the actual time spent without payment, I refer you to the case of Michael Fagan who entered Buckingham Palace and visited the Queen while she was in bed. During his probably terse conversation he partook of half a bottle of wine from her bedside table. As the act of trespass had incurred the Queen no quantifiable loss worth any mention, Fagan was instead charged with the theft of the wine.
Would the outcome have been any different if the Queen had a contractual notice by her bedroom door advising that visitors without permission would be charged £300? It wouldn't be intended to be a contract to visit her for payment of £300 now would it?

The BPA code of practice is deliberately obscure on the definition of the amount to charge. In one paragraph they say that charges should be reasonable and reflect the loss incurred, then in another paragraph it suggests a charging structure. It cannot have it both ways. I am mindful that if a court was to properly assess the charges, it would come down in favour of recompense for the actual loss rather than an amount suggested by a non statutory body with the best interests of its own members in mind.

The actual wording used within the Code of Practice is as follows:
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 based on the genuine pre-estimate of loss that you suffer.
Another point made in the following paragraph is: If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. Since the cost of the 2 hours parking is £0.00 how can a charge of £100 be considered as non punitive or reasonable? I expect you to calculate that into your considerations.

I put it to you that the BPA “guidance” is obfuscation on a parliamentary scale. That useful bit of information makes clear: loss that you suffer, meaning the parking management company which of course has suffered no loss at all. In fact up until the discovery of the non payment Parking Eye had no financial interest in the matter at all. Apart from that there can be no pre-estimate unless the known period of overstay, or length of stay without payment is known prior to that consideration. However, it can easily be calculated following the event by reference to the parking payment that has been underpaid or missed completely. Each case will have slightly different amounts and as such no genuine pre-estimate can therefore be made. The best way to compare this is by referencing it to a bit of seaweed hanging on a fence and trying to assess the weather conditions for tomorrow. It is quite frankly absurd and completely wrong to set a range of tariffs when a GENUINE loss may be easily quantified following the event.

The suggestion that trespass should also be quantified by a pre-estimate is absurd. It must have clarity. It must be a proven amount. The BPA sets a code that has passed no legislative scrutiny but instead offers quasi legalistic explanations to enhance the income of their members.

May I now point you to the text at the very top of this appeal. I assume you have skipped it and continued to the actual appeal points. If you have read this far, you have accepted a contract for payment of a sum of money. This is exactly the same situation as applies with this parking charge notification. Nothing more or less. It is exactly similar to suggesting that someone who drives beyond a sign agrees to the imposition of parking charges. You had the opportunity to throw this appeal in the bin without reading it. I hope you get my reasoning.

In conclusion, I accept that due to the wrong opinion made as to the terms of the parking arrangements there was an underpayment for a period relating to a cost of £10.00 and I will gladly make that payment in full and final acceptance of my responsibility. You can take it from the contractual charge you have just agreed to.



Popla Decision:













18 July 2013




[FONT=&quot]Reference:[/FONT]


[FONT=&quot]-v-[/FONT] [FONT=&quot]
[/FONT] [FONT=&quot](Appellant)[/FONT]

[FONT=&quot]
[/FONT]

[FONT=&quot]The[/FONT][FONT=&quot] Operator issued parking charge notice number[/FONT]


[FONT=&quot]arising[/FONT][FONT=&quot] out of the presence at Welcome Break Charnock Richard (South) car park on 21 March 2013 of a vehicle with registration mark[/FONT]
[FONT=&quot]The[/FONT][FONT=&quot] Appellant appealed against liability for the parking charge. The Assessor has considered the evidence of both parties and has[/FONT]
[FONT=&quot]determined [/FONT][FONT=&quot]that[/FONT][FONT=&quot] the [/FONT][FONT=&quot]appeal[/FONT][FONT=&quot] be[/FONT][FONT=&quot] allowed.[/FONT]



[FONT=&quot]The[/FONT][FONT=&quot] Assessor’s reasons are as set out.[/FONT]



[FONT=&quot]The[/FONT][FONT=&quot] Operator should now cancel the parking charge notice forthwith.[/FONT]












[FONT=&quot]
[/FONT]





Reasons for the Assessor’s Determination



YB61LXT.

On 27 March 2013 the Operator issued a parking charge notice to a black BMW with vehicle registration mark .The Operator recorded that the vehicle was parked at Welcome Break Charnock Richard (South) car park for 2 hours and 47 minutes on 21 March 2013. This exceeding the free parking time of 2 hours.
It is the Operator’s case that a parking charge notice was correctly issued because the Appellant’s vehicle was observed parked for longer than permitted. The Operator submits that a parking charge is now due in accordance with the clearly advertised terms of parking which stated that the site is private land and those parking may park for 2 hours, and thereafter must pay the applicable parking tariffs.

The Appellant does not dispute the Operator’s case that they were parked for longer than permitted. It is the Appellant’s case that the £100 parking charge far exceeds the cost to the land owner for the period over which their vehicle was parked at the site.

The signage produced in evidence by the Operator states that a parking charge notice would be issued for “failure to comply” with the parking conditions. This wording appears to indicate that the parking charge represents damages for a breach of the parking contract. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms.

The Operator submitted that they believe that the charge is “fair and reasonable and in accordance to the British Parking Association’s guidelines”. This does not represent a loss resulting from a breach.

Consequently, I have no evidence before me to refute the Appellant’s submission that the parking charge is unenforceable.

I must allow the appeal on this ground.

Accordingly, it does not fall for me to decide any remaining issues.



Amber Ahmed

Assessor