POPLA APPEAL - Please Help :0)

I would really appreciate some help if someone could very kindly have a look over my POPLA appeal before I submit it? I have read over the Newbies Thread (thank you for the information) and used what I believe to be the most up to date template. I am so upset to have received this PCN as the "over stay" they state was 12 minutes which was the driver loading the car with a toddler in tow - but I thought you were allowed a grace period of at least 10 minutes to leave a car park after your ticket has expired?


I don't live near the car park so haven't been able to return to take photos etc - will this have an impact on my appeal?


Any advice would be greatly appreciated as I have never done this before and I'm determined to win at POPLA.


I have asked all my friends and family to sign the petition so fingers crossed!


Many thanks


PS - I have taken out the links as it wouldn't let me post the thread but will add them back in when I submit the appeal to POPLA







Re: Parking Eye PCN, reference code
[FONT=verdana,sans-serif] POPLA Code[/FONT]
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[FONT=verdana,sans-serif]I shall begin by explaining the situation of how I was, as a keeper of the vehicle xxxxxx, issued with a £100 parking charge notice (PCN) from Parking Eye. I am the registered keeper of the vehicle and this appeal will probe that I am not liable for the parking charge.[/FONT]
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[FONT=verdana,sans-serif]The driver parked in the Aire Street car park in Leeds on 7th October 2015 and purchased a ticket for a 3 hour stay which commenced at 11.38 and expired at 14.38. (Please see ticket attached as proof). The driver returned to the car at the time of expiry, loaded up ready for the hour long journey back home. [/FONT]


[FONT=verdana,sans-serif]On the 28th October 2015 a PCN was received explaining that £100 was due and the total time in the car park was 3 hours 16 minutes. This was very upsetting and shocking to have received this PCN as a ticket was purchased for the correct period of time. Parking Eye have stated that the arrival time in the car park recorded by the APNR was 11.33 so the first 5 minutes was taken up finding a parking space, purchasing a ticket and returning to the car to display the ticket (surely this cannot count as extra time in the car park). The remaining 12 minutes (so they state) was spent loading the car and leaving the car park as they have stated the departure time recorded from the APNR as 14.50. This was not extra time parked as implied by Parking Eye and we are taking their word for it that the driver was 2 minutes over the 10 minute grace period. The entrance camera could be 2 minutes or more out from the exit camera and either of them might not match the Pay & Display machine timer. [/FONT]
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[FONT=verdana,sans-serif]I submit the points below to show that I am not liable for the parking charge:[/FONT][FONT=verdana,sans-serif]
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• [FONT=verdana,sans-serif]Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.[/FONT]
• [FONT=verdana,sans-serif]Inaccurate/Unreliable ANPR System [/FONT]
• [FONT=verdana,sans-serif]The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.[/FONT]
• [FONT=verdana,sans-serif]No standing or authority to pursue charges nor form contracts with drivers.[/FONT]
• [FONT=verdana,sans-serif]No genuine pre-estimate of loss.[/FONT]

[FONT=verdana,sans-serif]Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’. [/FONT]


[FONT=verdana,sans-serif]The sign was ambiguous and unclear because the entire sign is about 'PARKING TARIFFS' (not 'total stay') and the sign creates no obligations except to:[/FONT]

[FONT=verdana,sans-serif]- 'enter your full VRN correctly’ (it says 'you must' and the driver complied with that term).[/FONT]
[FONT=verdana,sans-serif] - 'park within bays' (the driver complied with that term).[/FONT]
[FONT=verdana,sans-serif] - 'Blue Badge holders - tariffs apply' (OK, but not relevant and not an obligation upon us).[/FONT]

[FONT=verdana,sans-serif] The only place the word 'stay' is mentioned on the sign is where it talks about maximum stay of 14 hours, the rest is all about 'parking time'. So as the P&D machine is the 'point of sale' and the P&D ticket is the receipt upon which an ordinary consumer would rely for the parking time, there was no contravention of the sign. The only contract agreed was to pay the tariff and return before expiry.[/FONT]

[FONT=verdana,sans-serif]It is wholly deceptive and unfair on drivers to impose a different time limit from cameras, than the time limit set on the Pay and Display ticket. Deceptive information which causes a consumer to take a different decision than they would have done, which then causes them detriment, is unlawful under the 'misleading actions' section (7.3) of the CPUTRs.[/FONT]

[FONT=verdana,sans-serif] This was undoubtedly a ‘concealed pitfall or trap’, which resulted in a disproportionate and unfair charge which placed an unfair burden upon the driver, breaching Schedule 2 of the UTCCRs and the Unfair Contract Terms Act: [/FONT]



[FONT=verdana,sans-serif]‘’SCHEDULE 2 Regulation 5(5) INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE[/FONT]
[FONT=verdana,sans-serif] REGARDED AS UNFAIR - 1. Terms which have the object or effect of –[/FONT]

[FONT=verdana,sans-serif](e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;[/FONT]
[FONT=verdana,sans-serif] (i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract...’’[/FONT]

[FONT=verdana,sans-serif]Unfair Contract Terms Act 1977:[/FONT]
[FONT=verdana,sans-serif]‘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.’[/FONT]

[FONT=verdana,sans-serif]I would also mention the case in 2014 at Altrincham County Court: 3JD08399 PE v Ms X. Fistral Beach. It was found that 31 minutes driving around looking for a space was not classed as parking and therefore there was no contravention of the parking terms and conditions.[/FONT]

[FONT=verdana,sans-serif] In our case, the driver relied upon the expiry time on the Pay and Display ticket. We returned to the car in time so complied with all the P&D machine terms and the driver NEVER agreed nor accepted any contract to pay £100.[/FONT]

[FONT=verdana,sans-serif] Obviously if drivers had any idea their P&D ticket would not be the time under which they would later be bound and that the operator held all the cards with a secret timing already working against them, they would not park at this car park at all because this is contrary to good faith. [/FONT]

[FONT=verdana,sans-serif] In the Barry Beavis v ParkingEye hearing at the Supreme Court in July 2015 the matter of the Aziz test was discussed, relating to the ECJ case: Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5. [/FONT]

[FONT=verdana,sans-serif] The question arising from that binding case is whether a term would have been agreed, had the parties sat down with a blank sheet of paper and negotiated the term in advance. I can state as an indisputable fact that the driver would without a shadow of doubt, never have agreed to this term, had it been negotiated in advance and if we knew then what we know now the driver would never have entered a Parking Eye run car park and never will again. [/FONT]

[FONT=verdana,sans-serif] A Pay & Display machine system is incompatible with ANPR enforcement; an operator cannot run two systems with two timings and favour the one which operates disadvantageously to consumers. [/FONT]


[FONT=verdana,sans-serif]Under the Consumer Rights Act now enacted, the question of unfairness in any consumer contract must be considered by the Courts (whether a consumer raises this issue or not) and therefore by definition, should also be a consideration of an ADR prior to court. It is suggested that it would be unjust if POPLA were to settle on anything less than a consistent approach: i.e. that any PCNs where operators have acted or operated unfairly, like this one, should be cancelled.[/FONT]

[FONT=verdana,sans-serif] This was no agreed contract and the sum is unfair, unreasonable and unrecoverable.[/FONT]




[FONT=verdana,sans-serif]Inaccurate ANPR System [/FONT]
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[FONT=verdana,sans-serif]The rules of the BPA require you to allow a grace period of at least 10 minutes either to allow a motorist to read the signs and make payment or decide whether parking is permitted, and at the end of a period of paid for time or maximum stay to allow for discrepancies in the time shown on different devices. A reasonable grace period should be granted and should be fair so no one is discriminated against i.e. those with small children or disabled people. On the day in question the driver had their two year old child with them and as you can appreciate it takes time to get everything in the car (including the child), pushchair, baggage, setting up the route finder, setting up the DVD for the child etc. [/FONT]

[FONT=verdana,sans-serif]On photographic evidence from an Automated Number Plate Recognition (ANPR) system. The ANPR cameras are not identified upon entry to the car-park. Although these systems have a reported high accuracy rate, there is well recorded evidence of them being prone to error and inaccuracy. Photographs produced as evidence by them, can be easily digitally altered. They do not prove the identity of the driver. Simple entry and exit photographs purported to be from the stated car-park do not prove unquestionably that the vehicle actually; entered and left it; parked within its boundaries, and remained parked within it for the alleged time. On the day in question I believe the vehicle exited within the grace period time, Aire Street is a busy road to exit onto so the driver could well have been sat in the car at the exit for a period of time until it was safe to exit the car park. [/FONT]
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[FONT=verdana,sans-serif]The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability[/FONT]
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[FONT=verdana,sans-serif]As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed![/FONT]

[FONT=verdana,sans-serif] I can see from the limited information before me in the NTK, only that the car stayed for a certain amount of time and that the contravention was an overstay or failure to pay. This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.[/FONT]

[FONT=verdana,sans-serif] These are the omissions:[/FONT]
[FONT=verdana,sans-serif] ''9(2)The notice must—[/FONT]
[FONT=verdana,sans-serif](b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;[/FONT]
[FONT=verdana,sans-serif](c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;[/FONT]
[FONT=verdana,sans-serif](d)specify the total amount of those parking charges that are unpaid...'[/FONT]
[FONT=verdana,sans-serif] NTK is not compliant, for example re this requirement:[/FONT]

[FONT=verdana,sans-serif] The NTK specifically fails on all counts. [/FONT]

[FONT=verdana,sans-serif] The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.[/FONT]

[FONT=verdana,sans-serif]No standing or authority to pursue charges nor form contracts with drivers [/FONT]
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[FONT=verdana,sans-serif] I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Parking Eye must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Parking Eye to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Parking Eye and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Parking Eye. [/FONT]

[FONT=verdana,sans-serif]No genuine pre-estimate of loss [/FONT]
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[FONT=verdana,sans-serif] The Operator cannot reasonably claim a broad percentage of their entire business running costs, as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. I suggest there was never any advance meeting held with the client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged overstay is 20 minutes or 20 hours.[/FONT]

[FONT=verdana,sans-serif] The Operator alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement) would fall foul of Mr Greenslade's explanation abut GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges. [/FONT]

[FONT=verdana,sans-serif] In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper, so I have no idea) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event.[/FONT]

[FONT=verdana,sans-serif] An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage. [/FONT]

[FONT=verdana,sans-serif] Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:[/FONT]
[FONT=verdana,sans-serif]"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’[/FONT]



[FONT=verdana,sans-serif] In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely.[/FONT]

[FONT=verdana,sans-serif] The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in Parking Eye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.[/FONT]
[FONT=verdana,sans-serif] POPLA Assessor Chris Adamson has stated in June 2014 that: [/FONT]

[FONT=verdana,sans-serif]''the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.'' [/FONT]


[FONT=verdana,sans-serif]This concludes my POPLA appeal.[/FONT]

[FONT=verdana,sans-serif] Yours faithfully,[/FONT]
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Registered Keeper