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Parking Eye charge at Kingston Park, Newcastle
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# 1
gwarpig
Old 02-07-2013, 11:27 AM
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Default Parking Eye charge at Kingston Park, Newcastle

First post, so please be gentle!

Ok, so got through the post what appears to be a typical letter from Parking Eye stating that we'd overstayed our welcome by 14 mins, along with photos and timestamps. Their dates are all within the time limits. Having read over these and other forums it appears the best first step is to initially reject the charge and ask to get a POPLA reference. So, with that in mind, I've taken some examples from other threads and cobbled together the letter below in the hope they just drop the charge. Could any of you helpful folk comment on whether it's got enough or too much info in it?


Dear Parking Eye,

In reference to the speculative invoice received xxxxxx dated xxxxxx, the keeper denies all liability to your company as:

  • It is an unlawful punitive charge, thus a penalty.
  • The driver waited over 15 minutes before finding a parking space and was therefore not parked for the specified time.
  • The fee is disproportionate and far exceeds the cost to the land owner.
  • The car park was around two thirds empty at time of departure so the driver was not preventing anyone else from using the car park.
If you reject this challenge the keeper requires within 35 days a POPLA verification code for them to appeal independently, per Version 3 of the BPA Code of Practice.

The keeper has nothing further to add, and will not respond to any correspondence from your company unless it contains the POPLA code. Furthermore, the keeper is fully aware that you must pay £27+Vat for this.

The challenge will be deemed accepted if there is no POPLA code on any rejection that you supply within the time-frame stipulated above.

Yours Faithfully...
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# 2
bazster
Old 02-07-2013, 11:43 AM
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I would remove your third and fourth bullets as they seem to imply your acceptance that there might have been some cost to the landowner, which there was not.

To be honest, I'd delete all your bullets except the first one. I like your second one, but I'd save it for POPLA.

The logic in the final paragraph doesn't add up. You just want something like this:

The challenge will be deemed accepted if a POPLA code is not received within the time-frame stipulated above.
I am an anti-enforcement hobbyist with little or no legal training. I am not and never have been a nightclub bouncer.
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# 3
Guys Dad
Old 02-07-2013, 11:47 AM
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Quote:
Originally Posted by gwarpig View Post
First post, so please be gentle!

Ok, so got through the post what appears to be a typical letter from Parking Eye stating that we'd overstayed our welcome by 14 mins, along with photos and timestamps. Their dates are all within the time limits. Having read over these and other forums it appears the best first step is to initially reject the charge and ask to get a POPLA reference. So, with that in mind, I've taken some examples from other threads and cobbled together the letter below in the hope they just drop the charge. Could any of you helpful folk comment on whether it's got enough or too much info in it?


Dear Parking Eye,

In reference to the speculative invoice received xxxxxx dated xxxxxx, the keeper denies all liability to your company as:

  • It is an unlawful punitive charge, thus a penalty.
  • The driver waited over 15 minutes before finding a parking space and was therefore not parked for the specified time.
  • The fee is disproportionate and far exceeds the cost to the land owner.
  • The car park was around two thirds empty at time of departure so the driver was not preventing anyone else from using the car park.
If you reject this challenge the keeper requires within 35 days a POPLA verification code for them to appeal independently, per Version 3 of the BPA Code of Practice.

The keeper has nothing further to add, and will not respond to any correspondence from your company unless it contains the POPLA code. Furthermore, the keeper is fully aware that you must pay £27+Vat for this.

The challenge will be deemed accepted if there is no POPLA code on any rejection that you supply within the time-frame stipulated above.

Yours Faithfully...
Point 4 is irrelevant, (think speeding on an empty motorway).

Point 2 is this true? They may have actual density of parking at your entry time on record.

No need for the " furthermore" sentence
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# 4
nigelbb
Old 02-07-2013, 11:53 AM
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Quote:
Originally Posted by Guys Dad View Post
Point 4 is irrelevant, (think speeding on an empty motorway).
If the PPC were legitimately to claim damages for a genuine pre-estimate of loss the fact that the car park was empty does have relevance. If it had been Xmas & the car park full to overflowing then the argument could be made that by overstaying they were preventing a "genuine" shopper from parking & thus there was a quantifiable loss. However...

The only point that should be in the challenge is that the keeper denies any liability for a charge that is clearly an unenforceable penalty. No mention of the driver or conditions in the car park as it is the keeper delivering the challenge & the keeper may well be unaware as to who was driving let alone whether the car park was empty.
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# 5
bazster
Old 02-07-2013, 11:57 AM
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Quote:
Originally Posted by nigelbb View Post
If the PPC were legitimately to claim damages for a genuine pre-estimate of loss the fact that the car park was empty does have relevance. If it had been Xmas & the car park full to overflowing then the argument could be made that by overstaying they were preventing a "genuine" shopper from parking & thus there was a quantifiable loss. However...
Said "genuine" shopper might've bought a 50p packet of sweeties or might've bought a £1,000 television - or might've just browsed and bought nothing.

No way is a hypothetical loss such as that quantifiable. A genuine pre-estimate of loss needs be in regard to an actual loss, not a "maybe" loss.
I am an anti-enforcement hobbyist with little or no legal training. I am not and never have been a nightclub bouncer.
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# 6
gwarpig
Old 02-07-2013, 12:03 PM
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Thanks all for the wonderfully fast and clear advice. Letter is now cut down to a single denial of liability and and finishes with a sentence that makes more sense!

One more thing, as a noob I've seen numerous threads that say "come back to us when you've got a POPLA reference and we'll help you put together a defence." Should I just continue this thread or post a new one?
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# 7
nigelbb
Old 02-07-2013, 12:06 PM
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Quote:
Originally Posted by bazster View Post
Said "genuine" shopper might've bought a 50p packet of sweeties or might've bought a £1,000 television - or might've just browsed and bought nothing.

No way is a hypothetical loss such as that quantifiable. A genuine pre-estimate of loss needs be in regard to an actual loss, not a "maybe" loss.
Agreed but my point was that a half empty car park negates the possibility of them even trying to use this tactic.
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# 8
bazster
Old 02-07-2013, 12:09 PM
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Quote:
Originally Posted by gwarpig View Post
Thanks all for the wonderfully fast and clear advice. Letter is now cut down to a single denial of liability and and finishes with a sentence that makes more sense!

One more thing, as a noob I've seen numerous threads that say "come back to us when you've got a POPLA reference and we'll help you put together a defence." Should I just continue this thread or post a new one?
Continue this one, so long as no-one else has hijacked it in the meantime. It'll pop right back to the top when you next post.
I am an anti-enforcement hobbyist with little or no legal training. I am not and never have been a nightclub bouncer.
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# 9
Guys Dad
Old 02-07-2013, 1:43 PM
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Quote:
Originally Posted by nigelbb View Post
If the PPC were legitimately to claim damages for a genuine pre-estimate of loss the fact that the car park was empty does have relevance. If it had been Xmas & the car park full to overflowing then the argument could be made that by overstaying they were preventing a "genuine" shopper from parking & thus there was a quantifiable loss. However....
Would that not be a loss to the shops and not the PPC? Unless there was any case-by-case financial agreement between the PPC and merchants in their contract, can't immediately see the cost to the PPC.
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# 10
bazster
Old 02-07-2013, 1:48 PM
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Quote:
Originally Posted by Guys Dad View Post
Would that not be a loss to the shops and not the PPC? Unless there was any case-by-case financial agreement between the PPC and merchants in their contract, can't immediately see the cost to the PPC.
That's a damned good point sir! In fact, on a multiple-occupancy retail park there wouldn't even be a contract between the shops and the PPC, the PPC would have contracted with the landowner or some management company.
I am an anti-enforcement hobbyist with little or no legal training. I am not and never have been a nightclub bouncer.
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# 11
nigelbb
Old 02-07-2013, 2:01 PM
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Quote:
Originally Posted by Guys Dad View Post
Would that not be a loss to the shops and not the PPC? Unless there was any case-by-case financial agreement between the PPC and merchants in their contract, can't immediately see the cost to the PPC.
The PPC never has any losses if a motorist commits a parking crime They can't possibly have any losses because of their business model. Their only income is when a motorist transgresses their rules so on the contrary there is no loss but a potential gain.

The alleged contract for parking is never with the PPC it's always with the landowner with the PPC acting as their agent. Any losses can only ever be those of the landowner. As the PPC is only ever an agent not a principal they can never sue for those losses either. This is why PE are going to come seriously unstuck in court if they persist in their claims against motorists.

There is an exception in Trevor Whitehouses's ANPR Ltd as their signs claim that for each parking crime they are obliged to pay the landowner £100. This is a lie which was revealed by a sample contract produced at POPLA. It is just as well it's not true otherwise they would be losing £50 each time they offer to take just £50 from the motorist for prompt payment.
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# 12
Guys Dad
Old 02-07-2013, 2:30 PM
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There is also the exception where the land is owned by the PPC, such as NCP and de Savary (e.g. Willen Lake Milton Keynes, Nigel, near to where it all began for you !!)
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# 13
Hovite
Old 02-07-2013, 2:53 PM
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Quote:
Originally Posted by nigelbb View Post
The PPC never has any losses if a motorist commits a parking crime They can't possibly have any losses because of their business model.
Not strictly true - the £2.50 fee from DVLA and the cost of the letters would count BUT it would never add up to what they currently ask for !
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# 14
nigelbb
Old 02-07-2013, 3:29 PM
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Quote:
Originally Posted by Guys Dad View Post
There is also the exception where the land is owned by the PPC, such as NCP and de Savary (e.g. Willen Lake Milton Keynes, Nigel, near to where it all began for you !!)
In those far off innocent days before I was even aware of the The Great PPC Swindle.

I believe that Vinci also own some of their own car parks.

Even if there were a contract & the landowner was prepared to sue you there would still be the obstacle that parking charges of £60 or £100 or whatever are clearly penalties designed to deter & not genuine pre-estimates of loss. I keep trotting out this analogy but if I stay in a hotel that costs £50/night & don't check out on time the most they could charge me is £50 for another night not £1000 even if there was a sign up in reception saying that they could.
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# 15
The Slithy Tove
Old 02-07-2013, 3:36 PM
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Quote:
Originally Posted by bazster View Post
That's a damned good point sir! In fact, on a multiple-occupancy retail park there wouldn't even be a contract between the shops and the PPC, the PPC would have contracted with the landowner or some management company.
What's more, the losses to the landowner will be zero, as he'll be getting the rent from the retailers come what may, full car park or empty.
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# 16
bazster
Old 02-07-2013, 4:10 PM
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Originally Posted by Hovite View Post
Not strictly true - the £2.50 fee from DVLA and the cost of the letters would count BUT it would never add up to what they currently ask for !
But they can't legitimately claim costs incurred pursuing a non-existent debt! Shades of 1984 double-think! Wibble!
I am an anti-enforcement hobbyist with little or no legal training. I am not and never have been a nightclub bouncer.

Last edited by bazster; 02-07-2013 at 4:17 PM.
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# 17
Coupon-mad
Old 02-07-2013, 11:08 PM
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Quote:
Originally Posted by gwarpig View Post
Thanks all for the wonderfully fast and clear advice. Letter is now cut down to a single denial of liability and and finishes with a sentence that makes more sense!

One more thing, as a noob I've seen numerous threads that say "come back to us when you've got a POPLA reference and we'll help you put together a defence." Should I just continue this thread or post a new one?

Just to add if you haven't sent it yet, Parking Eye are known to cancel some fake PCNs when the appellant can show receipts of about £30 or more. If you can do so, enclose receipt copies and tell them to cancel it or your next letters will be complaints to the retailers on site and to the Managing Agent/Landowner of the Retail Park.

Saves you having to bother with POPLA if PE cancel it on seeing receipts.
Ticket in a private car park in England/Wales?... DON'T PAY IT BUT DO NOT IGNORE IT- the advice changed in 2012/13!

CLICK on '>Parking Tickets, Fines & Parking>' end of the small blue 'Home>Forums>' link, top of the page, to see current threads.
Do NOT read older advice to ignore, unless it was in Scotland or NI.
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# 18
gwarpig
Old 10-07-2013, 5:27 PM
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I have now received a POPLA reference and a response from PE saying my appeal has been rejected, even though I was challenging, not appealing.

They've included some nonsense about their charges not being disproportionate - they represent a genuine pre-estimate of loss because they have to put up signs, maintain their ANPR system and pay staff and overhead costs. I thought the for the losses to be legitimate they had to have been borne by the landowner?

Anyroadup, would someone please be able to help me with the appeal to POPLA?
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# 19
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Old 10-07-2013, 5:35 PM
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Most PPCs don't seem to be able to distinguish between what are day-to-day running expenses and any actual "loss" caused by a particular parking incident.
I am an "internet guru" (copyright Stephan Hall @ UKCPS)
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# 20
Guys Dad
Old 10-07-2013, 6:03 PM
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Quote:
Originally Posted by gwarpig View Post
I have now received a POPLA reference and a response from PE saying my appeal has been rejected, even though I was challenging, not appealing.

They've included some nonsense about their charges not being disproportionate - they represent a genuine pre-estimate of loss because they have to put up signs, maintain their ANPR system and pay staff and overhead costs. I thought the for the losses to be legitimate they had to have been borne by the landowner?

Anyroadup, would someone please be able to help me with the appeal to POPLA?
Start from picking the relevant parts from this excellent one from Coupon-Mad


Dear POPLA adjudicator,

POPLA appeal re ticket number xxxxxxx POPLA code xxxxxxxxxx

I have researched the matter and would like to point out the following:



UNCLEAR AND NON-COMPLIANT SIGNAGE
Due to their high position, bright colours, distracting pictograms and the barely legible size of the small print, the signs in this car park are very hard to read and understand. At no point was I sufficiently informed by any signs that I had to input my entire car registration number in this car park as this is not the norm locally. Neither was the wording on the P&D machines clear in this regard, or I would not have entered just the numbers.

I contend that the signs and any core parking terms Excel are relying upon were too small for any driver to see, read or understand when driving into the car park. I request that POPLA should check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs and machines in that car park (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011.


CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE TICKETS
Excel do not own this car park and are acting merely as agents for the owner or legal occupier. In their Notice and in the rejection letters, Excel have 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 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 (as evidenced in the Higher Court findings in VCS v HMRC 2012).

I would require POPLA to please check whether Excel have provided a full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier (not just a signed slip of paper saying it exists) and check that it specifically enables this Operator to pursue parking charges in their own name and through the court system. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.


NO CONTRACT WITH THE DRIVER AND UNFAIR TERMS
There is no contract between Excel and myself but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999:

Unfair Terms
5.—(1) 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.

(2) 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.''

Clearly it is patently unfair for a firm to state in a published article that they have a set procedure including manual checks - because they understand a driver can make a mistake with car registration input - and yet they failed to carry out those simple checks in my case. This would seem to me to be a clear breach of the Consumer Protection from Unfair Trading Regulations 2008.


NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
Excel are clearly attempting to enforce this charge under paragraph B 19.5 of the BPA Code of Practice as they suggest my emergency constituted a breach of contract. As such, they must be required to validate this argument by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss or damages in this particular car park for this particular 'contravention'.

I would ask the adjudicator's confirmation that the following items should not be included in the pre-estimate of loss as these are costs of running the business
• Erection and maintenance of the site signage.
• Installation, monitoring and maintenance of the Automatic Number Plate Recognition
systems.
• Employment of office-based administrative staff.
• Membership and other fees required to manage the business effectively including
those paid to the SPA, DVLA and ICO.
• General costs including stationery, postage, etc.
Since I paid and displayed and no damage was caused, there can have been no loss arising from this incident. Neither can Excel lawfully include their operational day-to-day running costs in any 'loss' claimed. 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.


ANPR SECTION OF THE BPA CODE OF PRACTICE
I further contend that Excel have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.


UNLAWFUL PENALTY CHARGE
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, it can only remain a fact that this 'charge' is an attempt at dressing up an unlawful penalty 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) .



On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with the CPUTR 2008, the UTCCR 1999, the Equality Act 2010 and basic contract law.

It is unfair and punitive and, as such, I respectfully request that this appeal be allowed.




Signed:

Dated


Now, you will need to use the bits that apply to your situation. Do not cut and paste the lot without reading what you are going to use.

Also, wait for some additional help and good luck.
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