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  • FIRST POST
    class_clown
    Soft appeal, rejected = POPLA time! Advice appreciated...
    • #1
    • 21st Nov 13, 12:30 AM
    Soft appeal, rejected = POPLA time! Advice appreciated... 21st Nov 13 at 12:30 AM
    Hi all,

    The RK of a vehicle, driven by myself, received a PCN from PE a few weeks back, in relation to an overstay at a retail park car park in England.

    I consulted the good people of MSE...albeit under a different username, for which the account and original thread has been removed (at my request) because I ignorantly left my case open to identification - woops!

    Anyway, a soft appeal with evidence of purchases and photos of unclear signage was sent to PE by myself, acting on behalf of the RK - and with their permission. In return, the RK was sent standard template letters making no reference to why my evidence wasn't up to scratch for them...

    But crucially, I've got my POPLA now and would be grateful for any help on what grounds to prepare my argument on.

    Here's a summary of my case...

    * An accidental overstay at a PE managed retail park car park by circa 30 minutes of an allowed 3hrs.

    * As the driver, I was on site for the duration at a coffee shop and did not see any signage on entry or in the area of the car park where my vehicle was left.

    * I made debit and cash transactions at the coffee shop, no receipts retained...but I do have a bank statement detailing the transactions...

    * Annoyed at myself for failing to clock the PE signage, I revisited the retail park car park to look for signs. Found that the only sign in the segment of the car park I used was massively obscured by overgrown trees...hence my not noticing it!!! Took some pics of obscured signage. Also retained pic of the drivers line of sight from the car to the coffee shop showing no other visible signage!

    * Further, signage on the entrance not clearly noticeable as the only way in to the car park is by negotiation of a busy trunk road with oncoming traffic requiring the drivers full attention!

    * Presented the coffee shop in question with my proof of purchases and asked them to contact PE and cancel charge, since they supposedly have this power. Was bitterly disappointed when told "staff have been instructed we can no longer assist customer complaints against the PPC operator due to volume of customers requesting help in their appeals" ...make of that what you will! It was more than enough to discourage wasting time with a similar approach the the landowener, though...

    * PE demanding £85


    On the POPLA decisions thread, it's been noted in the last few days that GPEoL and no authority are proving the most successful approaches against PPCs at the moment.

    Given this, I'm naturally keen to go with one or both of these at the top of my POPLA appeal...using the fact I was a genuine patron of the retail park for the duration and the dodgy signage as a subsidiary.

    Is that wise?

    Equally...are there any bits I need to watch out for in the small print of my PCN before claiming no GPEoL?

    FAQs sent by PE state that a £75 was deemed fair in 2011.

    Obviously, common sense inclines me to suggest that a 30 minute overstay in a retail park car park, on a weekday (i,e, the car park was 2 thirds empty!!!), where I was a genuine customer will stand up. But I don't want to make any assumptions here. Any advice appreciated.

    Also, I made no reference to the GPEoL in my soft appeal. Does that matter?

    The one thing I'm really curious about is 'no authority'

    If I'm going to try this one, is there anything I need to check out for first? Looking at threads on MSE and Pepipoo it seems like some have blindly gone gung-ho with the no authority route and been bitten when POPLA come back and tell them that actually...yes in this case there IS authority.

    Phew! Sorry about the huge post...but I would be very grateful for any constructive input on putting together a successful POPLA for my case.

    Also, thanks to zzzLazyDaisy, Stroma & Coupon-mad who all helped on my original (since removed) thread...
Page 1
    • Coupon-mad
    • By Coupon-mad 21st Nov 13, 1:04 AM
    • 41,768 Posts
    • 53,897 Thanks
    Coupon-mad
    • #2
    • 21st Nov 13, 1:04 AM
    • #2
    • 21st Nov 13, 1:04 AM
    On the POPLA decisions thread, it's been noted in the last few days that GPEoL and no authority are proving the most successful approaches against PPCs at the moment.

    Given this, I'm naturally keen to go with one or both of these at the top of my POPLA appeal...using the fact I was a genuine patron of the retail park for the duration and the dodgy signage as a subsidiary.

    Is that wise?
    Yes except that at POPLA, 'genuine patron' doesn't help.


    Also, I made no reference to the GPEoL in my soft appeal. Does that matter?
    Nope not at all. Look at what Parking Prankster said to Highview at first (then won at POPLA):

    http://www.theregister.co.uk/2013/05/17/carpark_superhero_numberplate/


    If I'm going to try this one, is there anything I need to check out for first? Looking at threads on MSE and Pepipoo it seems like some have blindly gone gung-ho with the no authority route and been bitten when POPLA come back and tell them that actually...yes in this case there IS authority.
    Not really worth worrying about, add all the usual points in anyway:

    http://forums.moneysavingexpert.com/showthread.php?t=4816822

    See the links under the POPLA acronym explanation. Show us your draft here!
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

  • class_clown
    • #3
    • 26th Nov 13, 12:14 AM
    • #3
    • 26th Nov 13, 12:14 AM
    Hi, OK...

    So here goes, this is my draft POPLA. Any input on potential omissions or, rather, over elaboration, are VERY welcome...

    ************************************************** ************************************************** **

    Reasons for Appeal (POPLA Appeal Code xxxxxxxxxx)

    I am the registered keeper of the vehicle XXXXXXX and I am appealing against Parking Charge Notice number xxxxxx/xxxxxx received from ParkingEye, in relation to a parking event alleged to have occurred on xxxxxxxx

    The Parking Charge Notice relates to an over-stay of 40 minutes in a “3 Hours Free” car park at xxxxxxxxxxx.

    I have researched the matter, taken legal advice and would like to point out the following as my grounds for appeal against said charge:


    1. NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS.
    2. UNLAWFUL PENALTY CHARGE.
    3. INADEQUETE SIGNAGE.
    4. CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND/OR NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES.
    5. USE OF ANPR & DATA COLLECTION.
    6. NO CONTRACT WITH THE DRIVER.
    7. UNFAIR TERMS.
    8. UNREASONABLE.


    1. NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS.


    There was no parking charge levied, as the car park is “free” for 3 hours.

    On the date of the claimed loss, the xxxxxxxxxx car park was only at around 20% capacity (it was a weekday afternoon, outside of the school holidays); and there was no physical damage caused.

    Furthermore, nine of the eleven shops on the retail park closed at 20:00 (with only xxxxxx, where the driver was a customer, and one other store remaining open past this time). By the time the 3 hours free parking had expired, two of the shops at the retail park had closed.

    As such, there can have been no loss arising from an over-stay of 40 minutes, with almost all of the shops on the site either shut, or winding down in their final hour of trading.

    Additionally, ParkingEye cannot lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site in any “loss” claimed. They state, for instance, that the costs covered by the charge include erecting signage, postage & employing administration staff; a genuine pre-estimate of loss, only amounts to expenditure that arises directly as a result of the incident. Not running costs of their business.

    In other words, had no breach occurred on xxxxxxx or against any other driver of a motor vehicle at xxxxxx before, or since, the cost of parking enforcement would still have been the same. This does not represent a loss resulting from a breach of the alleged parking contract.

    As the registered keeper of vehicle xxxxxxxx, I contend that there can be no loss shown whatsoever; and no pre-estimate has been prepared or considered in advance by ParkingEye. The charge that was levied is punitive and therefore unenforceable, because the initial charge is illogical and in no way proportionate to any alleged breach of contract.

    These facts are magnified by the additional charges which operator states increases after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order.

    It is also entirely fair to question that if a charge can be discounted by approximately 40% by early payment that it is unreasonable to begin with.

    What’s more, the charge does not equate to local council charges. A council car park for the xxxxxxx retail park, 300 yards away, which serves a similar number of shops, charges £3.20 for up to four hours parking and is free after 6pm, 7 days a week.


    2. UNLAWFUL PENALTY CHARGE.

    As there is no proven loss/damage and yet a breach of contract has been alleged for a free car park, it can only be surmised that this “charge” is an attempt at extorting an unlawful charge 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), ParkingEye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

    Either ParkingEye is charging for losses OR it is a penalty/fine.

    The operator could have easily stated the letter as an invoice or request for monies, but chooses to hide behind the wording “PARKING CHARGE NOTICE” in an attempt to appear the same as an official parking fine, such as those distributed by council car parking wardens or the police.


    3. INADEQUETE SIGNAGE.

    Picture 1
    – The only sign in the area of the car park at xxxxxxx where vehicle xxxxxxx was parked on xxxxxxxx massively obscured by overgrown foliage.

    Picture 2 – The drivers’ line of sight walking from the car to the xxxxxxx store on xxxxxxx showing no other visible signs.

    On receiving the Parking Charge Notice from ParkingEye, the driver, who was using the vehicle on the date of the alleged parking event, revisited the xxxxxx car park to ascertain why they did not see any signs.

    The corner of the xxxxxxxxx car park where the driver left vehicle xxxxxxx near the xxxxxxx store on xxxxxxx was isolated from the main part of the car park serving 10 of the 11 retailers on the site.

    According to BPA Operational Requirements Section 18.3 operators:

    “Must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle”.


    As you can see in Picture 1, the only example of ParkingEye signage in the area of the car park that the driver utilised on xxxxxxxx was not clearly visible, and, indeed, was heavily obscured by foliage that the landowner/parking operator has failed to manage and which, subsequently, has concealed the terms that ParkingEye assert form the basis of the contract with the driver.

    In Picture 2, the drivers walking route from parking vehicle xxxxxx to the xxxxxx store shows no other visible signs to compensate for the obscured sign that would likely have been spotted by the driver, had the landowner/parking operator properly maintained the site.

    Further, during the retrospective visit to the xxxxxxx car park, the entrance signage was also deemed inadequate.

    This assertion can be made on the basis that on xxxxxx, the driver, entered the car park by turning right off the busy junction on the xxxxxxx Road (Axxx) and cannot reasonably have been expected to notice the only entrance sign, located at a relatively low level - and far from immediately obvious - site; where drivers turning right into the xxxxxx car park would be pre-occupied by looking out for oncoming vehicles travelling in the opposite direction at speeds of up to 40mph, as they negotiate the turn into the xxxxx car parks ONLY entrance, which is not controlled by traffic lights.

    This clearly contravenes BPA Code of Practice Operational Requirements Section 18.1:

    "In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are".


    Given that the driver of vehicle xxxxx was not able to easily view the signage and the terms and conditions which it supposedly sets out, there can be no responsibility levied with the driver, as it is the responsibility of the parking operator alone to ensure that their terms are clear on ALL signage throughout the car park.


    4. CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND/OR NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES.

    ParkingEye does not appear to own this car park and are assumed to be merely agents for the owner or legal occupier. In all of their correspondence with me, including the original PCN and appeal rejection letter, ParkingEye has 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 request ParkingEye provide a full copy of the signed & dated contract with the landowner.

    This is because, by their very nature, contracts are highly complex. Therefore, a witness statement signed by someone is not satisfactory, nor is a statement that a person has seen it. Only a copy of the original showing the points outlined above is acceptable proof that a contract exists and allows ParkingEye the right, under contract, to issue multiple letters to an appellant demanding monies without taking them to court, to seek parking charges in their own name, to retain any monies received from an appellant and to chase them through to court.

    I contend that any contract is not compliant with the requirements set out in the BPA Code of Practice.

    With this in mind, I do not believe that ParkingEye 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.

    I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that:

    "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."

    The ruling of the Court was that:

    "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."

    In other words, they are not, as ParkingEye asserts, a contractual term. If they were a contractual term, ParkingEye would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge.

    The Appellant asserts that these requirements have not been met. It must therefore be concluded that ParkingEye’s charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.


    5. USE OF ANPR & DATA COLLECTION.

    Picture 3
    – An example of unobscured signage at the xxxxxxx car park, in a different area of the car park to which the driver parked on xxxxxxxxx

    I further contend that ParkingEye, in ALL of their correspondence to me, have failed to show 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 them to provide documented compliance to this section of the Code in its entirety.

    This evidence must show documentary proof of contemporaneous manual checks, maintenance, calibration and full compliance with section 21 of the Code, in its evidence.

    Section 21.1 of the BPA CoP (June 2013) also states:

    “Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for”.


    As stated under the heading of “inadequate signage” (point 3 this appeal), on my receipt of the Parking Charge Notice, the driver of vehicle xxxxx on xxxxxxx, retrospectively revisited the xxxxxxx car park.

    On arrival, they found a sign (in a different area of the car park to which the vehicle was parked on xxxxxx) and took a photo of it, which, you will note, I have submitted as a supporting document (Picture 3).

    The sign was around 8ft off the ground and while it mentioned that the car park was “monitored by ANPR systems” it did not, as the photograph shows, clearly state what exactly the data captured by the ANPR cameras would be used for, as required under section 21.1.

    It is noteworthy that there was some minute small-print on the sign which possibly could have shown this information, but as you can see from the image, the print is much too small to be reasonably considered for an average person to be able to read – and I would be truly astonished if ParkingEye were able to prove otherwise.

    As an aside, I also request that ParkingEye show that DPA registration (data collecting CCTV) is also compliant with legal and BPA requirements and ask that they demonstrate observance of the rules under which, they are required to operate.


    6. NO CONTRACT WITH THE DRIVER.

    There is no contract between PCC and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. This is because requirements of ‘forming a contract’ such as a meeting of minds, agreement, certainty of terms etc. were not satisfied.


    7. UNFAIR TERMS.

    The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e):

    "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation."


    Furthermore, Regulation 5(1) states that:

    "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"


    and 5(2) states:

    "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."



    8. UNREASONABLE.

    The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that:

    "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.”



    REVIEW

    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 Code of Practice and also fails to observe with basic contract law. As such, may I politely request that the adjudicator please proceed to approve this appeal.


    ************************************************** ************************************************** ***

    I get the impression that as POPLA's go, this one is pretty long. But I think all of the main points are in there.

    As I said at the top, I'd be very grateful for any input on this first draft, especially on point 3 (inadequate signage) as I couldn't find many examples of POPLA's including this...
    • Coupon-mad
    • By Coupon-mad 26th Nov 13, 12:43 AM
    • 41,768 Posts
    • 53,897 Thanks
    Coupon-mad
    • #4
    • 26th Nov 13, 12:43 AM
    • #4
    • 26th Nov 13, 12:43 AM
    That's a good (long!) draft and it's nice to see it written pretty individually and relating to pics of the car park in question.

    A typo:

    3. INADEQUETE SIGNAGE.
    Should read 'INADEQUATE SIGNAGE'.

    And I would try to remove the repetition and unnecessary stuff, have a fresh look tomorrow perhaps & try to remove some 'flowery' bits where you could summarise a point a little more succinctly maybe.

    I would certainly remove the 'What's more' part of it as there' no advantage to comparing this car park to Council costs.

    I think you've based it on quite an old template and here's a newer version with more relevant court cases where PE lost (rather than lots about VCS v HMRC):

    http://forums.moneysavingexpert.com/showthread.php?t=4810260&page=2

    I have also just suggested more stuff about the ANPR compliance on that thread and if you look at Danny's version he has the Fox-Jones case cited (as well as the Sharma and Gardam cases in the 'contract/authority to issue charges' section). I do like your wording in the ANPR section where you mention 'picture 3' and that they have failed to state what the data will be used for as required by 21.1. That's good evidence!
    Last edited by Coupon-mad; 26-11-2013 at 12:45 AM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

  • class_clown
    • #5
    • 26th Nov 13, 4:54 PM
    • #5
    • 26th Nov 13, 4:54 PM
    That's a good (long!) draft and it's nice to see it written pretty individually and relating to pics of the car park in question.

    A typo:



    Should read 'INADEQUATE SIGNAGE'.
    Originally posted by Coupon-mad
    Woops!

    Well spotted - I'll post an update in the next 24 hours.

    Also, I know mitigating circumstances are a no-no on their own, but is there any benefit in also adding a copy of a bank statement to show proof of purchases as part of a POPLA?
    • Coupon-mad
    • By Coupon-mad 26th Nov 13, 5:16 PM
    • 41,768 Posts
    • 53,897 Thanks
    Coupon-mad
    • #6
    • 26th Nov 13, 5:16 PM
    • #6
    • 26th Nov 13, 5:16 PM
    No not at all.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

  • class_clown
    • #7
    • 29th Nov 13, 10:24 PM
    • #7
    • 29th Nov 13, 10:24 PM
    Posting a little later than intended, but here is draft 2.

    I took out some of the waffle and updated the court cases including Fox-Jones under the added sub-title ANPR Accuracy. I've struggled to find a court case number for this one, though. Should that be cause to err on the side of caution when it comes to citing it?

    It is still a very long appeal, but it's fairly exhaustive (I think/hope!)

    Any suggestions on major sections that could be cut out would be welcome.

    Thanks again for your help so far...

    *******************************************

    POPLA Verification Code xxxxxxxxxx)
    Vechicle Registration:
    Parking Company:
    PCN Reference:
    Car Park:
    Date & Time of Alleged Parking Event:
    Date of Notice:
    Parking Charge Amount:


    DATE: XX/XX/XX

    Appellant’s Documentary Evidence in respect of the case relating to POPLA Verification Code xxxxxxxxxxx

    Dear POPLA assessor,

    I am the registered keeper of the vehicle XXXXXXX and I am appealing against Parking Charge Notice number xxxxxx/xxxxxx received from ParkingEye Ltd. in relation to a parking event alleged to have occurred on xxxxxxxx

    The Parking Charge Notice relates to an over-stay of 40 minutes in a “3 Hours Free” car park at xxxxxxxxxxx.

    I have researched the matter, taken legal advice and would like to point out the following as my grounds for appeal against the charge:


    1. NO GENUINE PRE-ESTIMATE OF LOSS & NO BREACH OF CONTRACT
    2. UNLAWFUL PENALTY CHARGE.
    3. INADEQUATE SIGNAGE.
    4. CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND/OR NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES.
    5. USE OF ANPR & DATA COLLECTION.
    6. ANPR ACCURACY.
    7. NO CONTRACT WITH THE DRIVER.
    8. UNFAIR TERMS.
    9. UNREASONABLE.


    1. NO GENUINE PRE-ESTIMATE OF LOSS & NO BREACH OF CONTRACT

    The amount of £XXX demanded by ParkingEye Ltd. is not a genuine pre-estimate of loss.

    The estimate must be based upon loss following from a breach of the parking terms, for example, the loss of parking revenue or even loss of retail revenue at a shopping centre.

    On the date of the claimed loss, the xxxxxxxxxx car park was only at around 20% capacity (it was a weekday afternoon, outside of the school holidays) and there was no physical damage caused.

    Nine of the eleven shops on the retail park closed at 20:00 (with only xxxxxx, where the driver was a customer, and one other store remaining open past this time). By the time the 3 hours free parking had expired, two of the shops at the retail park had closed.

    As such, there can have been no loss arising from an over-stay of 40 minutes, with almost all of the shops on the site either shut, or in their final hour of trading.

    ParkingEye Ltd. cannot lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site in any “loss” claimed. They state, for instance, that the costs covered by the charge include erecting signage, postage & employing administration staff; a genuine pre-estimate of loss, only amounts to expenditure that arises directly as a result of the incident. Not running costs of their business.

    In other words, had no breach occurred on xxxxxxx or against any other driver of a motor vehicle at xxxxxx before, or since, the cost of parking enforcement would still have been the same.

    I contend that there can be no loss shown whatsoever; and no pre-estimate has been prepared or considered in advance by ParkingEye Ltd.

    The charge that was levied is punitive and therefore unenforceable, because the charge is in no way proportionate to any alleged breach of contract.

    These notions are magnified by the additional charges which operator states increases after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order.

    It is also entirely fair to question that if a charge can be discounted by approximately 40% by early payment that it is arbitrary to begin with.

    Having intimately researched previous cases, it will come as little surprise if ParkingEye Ltd. submit one of their well-known templates to assert ''commercial justification'' but I rebut their arguments.

    In a recent decision about a ParkingEye Ltd. car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept ParkingEye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified:
    ''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.''
    This case is the same as the one I am appealing against and I trust that POPLA will be seen to be consistent if similar arguments are raised by an appellant.


    2. UNLAWFUL PENALTY CHARGE.

    As there is no proven loss/damage and yet a breach of contract has been alleged for a free car park, it can only be surmised that this “charge” is an attempt at extorting an unlawful charge to impersonate a parking ticket.

    Either ParkingEye Ltd. is charging for losses OR it is a penalty/fine.

    The operator could have easily stated the letter as an invoice or request for monies, but instead opts for the wording “PARKING CHARGE NOTICE” in an attempt to appear the same as an authoritative parking fine, such as those distributed by council car parking wardens or the police.


    3. INADEQUATE SIGNAGE.

    Picture 1 – The only sign in the area of the car park at xxxxxxx where vehicle xxxxxxx was parked on xxxxxxxx massively obscured by overgrown foliage.

    Picture 2 – The drivers’ line of sight walking from the car to the xxxxxxx store on xxxxxxx showing no other visible signs.

    On receiving the Parking Charge Notice from ParkingEye Ltd. the driver on xxxxxx revisited the xxxxxx car park to ascertain why they did not see any signs.

    The corner of the xxxxxxxxx car park where the driver left vehicle xxxxxxx near the xxxxxxx store is isolated from the main part of the car park which serves 10 of the other 11 retailers on the site.

    According to BPA Operational Requirements Section 18.3 operators:

    “Must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle”.


    As you can see in Picture 1, the only example of ParkingEye Ltd. signage in the area of the car park that the driver utilised on xxxxxxxx was not clearly visible, and, indeed, was heavily obscured by foliage that the landowner/parking operator has failed to manage and which, subsequently, has concealed the terms that ParkingEye Ltd. assert form the basis of the contract with the driver.

    In Picture 2, the drivers walking route from parking vehicle xxxxxx to the xxxxxx store shows no other visible signs to compensate for the obscured sign that would likely have been spotted by the driver.

    Further, during the retrospective visit to the xxxxxxx car park, the entrance signage was also deemed insufficient.

    The driver, entered the car park by turning right off the busy junction on the xxxxxxx Road (Axxx) and cannot reasonably have been expected to notice the only entrance sign, located at a relatively low level. This is because drivers turning right into the xxxxxx car park would be pre-occupied by looking out for oncoming vehicles travelling in the opposite direction (at speeds of up to 40mph), as they negotiate the turn into the xxxxx car parks ONLY entrance, which is not controlled by traffic lights.

    This clearly contravenes BPA Code of Practice Operational Requirements Section 18.1:

    “In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are”.


    ParkingEye Ltd. needs to prove that the driver actually viewed and accepted the terms. Ultimately this means that both a POPLA adjudicator, and myself as the appellant, would be led to believe that a conscious decision was made by the driver to park at xxxxxx in exchange for paying the exorbitant fixed amount the Operator is now demanding.

    The notion that ANY driver would accept these terms knowingly is, at the very best, perverse.

    4. CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND/OR NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES.

    Section 7.1 of the BPA Code of Practice instructs the operator that:

    “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.


    ParkingEye Ltd. does not appear to own this car park and are assumed to be merely agents for the owner or legal occupier. In all of their correspondence with me, ParkingEye Ltd. has not provided any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own (nor exercise any interest or assignment of title) of the land in question.

    I request ParkingEye Ltd. provide a full copy of the signed & dated contract with the landowner.

    This is because, by their very nature, contracts are highly complex. Therefore, a witness statement signed by someone is not satisfactory, nor is a statement that a person has seen it. Only a copy of the original showing the points outlined above is acceptable proof that a contract exists and allows ParkingEye Ltd. the right, under contract, to issue multiple letters to an appellant demanding money without taking them to court.

    With this in mind, I do not believe that ParkingEye Ltd. 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.

    I refer the Adjudicator to the recent Appeal Court decision in the case of ParkingEye Ltd. v Sharma, Case No. 3QT62646 in the Brentford County Court on 23/10/2013.

    District Judge Jenkins checked the ParkingEye Ltd. contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye Ltd. as their agent, and clause 22, where is states there is no agency relationship between ParkingEye Ltd. and the landowner.

    The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent and didn’t create any contractual relationship between ParkingEye Ltd. and motorists who used the land.

    This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court on 14/11/2013, where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name.

    Again, my case is the same.

    Should ParkingEye Ltd. produce a witness statement in lieu of the contract then I will proceed to present contradictory evidence, demonstrating how these have been debunked in other recent court cases due to well-established date/signature/factual irregularities.

    If such a witness statement is submitted instead of the landowner contract itself, I argue that it represents an insult to the intelligence of yourself as the POPLA assessor, as it does not prove full BPA compliance or showing sufficient detail to disprove the findings in Sharma and Gardam.


    5. USE OF ANPR & DATA COLLECTION.

    Picture 3 – An example of unobscured signage at the xxxxxxx car park, in a different area of the car park to which the driver parked on xxxxxxxxx

    ParkingEye Ltd. have failed to show any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and require them to provide documented compliance to this section of the Code in its entirety.

    This evidence must show documentary proof of contemporaneous manual checks, maintenance, calibration and full compliance with section 21 of the Code, in its evidence.

    Section 21.1 of the BPA CoP (June 2013) also states:

    “Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for”.


    As stated under the heading of “inadequate signage” (point 3 this appeal), on my receipt of the Parking Charge Notice, the driver of vehicle xxxxx on xxxxxxx, retrospectively revisited the xxxxxxx car park.

    On arrival, they found a sign (in a different area of the car park to which the vehicle was parked on xxxxxx) and took a photo of it, which, you will note, I have submitted as a supporting document (Picture 3).

    The sign was around 8ft off the ground and while it mentioned that the car park was “monitored by ANPR systems” it did not, as the photograph shows, clearly state what exactly the data captured by the ANPR cameras would be used for, as required under section 21.1.

    It is noteworthy that there was some minute small-print on the sign which possibly could have shown this information, but as you can see from the image, the print is much too small to be reasonably considered for an average person to be able to read – and I would be truly astonished if ParkingEye were able to prove otherwise.

    As an aside, I also request that ParkingEye show that DPA registration (data collecting CCTV) is also compliant with legal and BPA requirements and ask that they demonstrate observance of the rules under which, they are required to operate.


    6. ANPR ACCURACY.

    ParkingEye Ltd, under paragraph 21.3 of the BPA Code of Practice, is required to ensure that their ANPR equipment is maintained and in working order.

    On the basis that the Operators entire case presides over two images of vehicle xxxxxx entering and leaving xxxxxx car park, I request that ParkingEye Ltd. supply dated and signed records of when the ANPR kit was last maintained and synchronised with the timer which stamps to the photos taken.

    It is crucial that ParkingEye respond to these points in order to explain how their system differs from the defective ANPR system which was responsible in the recent loss of the ParkingEye vs Fox-Jones case on 8 Nov 2013. This case was dismissed when the judge ruled evidence from ParkingEye Ltd. was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question


    7. NO CONTRACT WITH THE DRIVER.

    There is no contract between PCC and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. This is because requirements of ‘forming a contract’ such as a meeting of minds, agreement, certainty of terms etc. were not satisfied.


    8. UNFAIR TERMS.

    The charge that was imposed is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e):
    "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation."
    Furthermore, Regulation 5(1) states that:

    "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"


    And 5(2) states:
    "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."

    9. UNREASONABLE.

    The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that:

    "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.”



    REVIEW

    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 Code of Practice and also fails to observe with basic contract law.

    As such, may I politely ask that the adjudicator please proceed to approve this appeal upon ParkingEye’s failure to provide the necessary evidence, as requested in the above points.

    Yours sincerely,

    XXXXXXXXXXXXXXXXXXXXXXXXX
  • class_clown
    • #8
    • 30th Nov 13, 4:25 PM
    • #8
    • 30th Nov 13, 4:25 PM
    Hopefully I can take no replies as a stamp of approval on this POPLA

    ...That or it really is just too long for anyone to read!

    In either case, I hope no-one mind if I give this one a little bit of a...

    *bump*
    • Coupon-mad
    • By Coupon-mad 30th Nov 13, 6:00 PM
    • 41,768 Posts
    • 53,897 Thanks
    Coupon-mad
    • #9
    • 30th Nov 13, 6:00 PM
    • #9
    • 30th Nov 13, 6:00 PM
    I took out some of the waffle and updated the court cases including Fox-Jones
    under the added sub-title ANPR Accuracy. I've struggled to find a court case
    number for this one, though. Should that be cause to err on the side of caution
    when it comes to citing it?
    I can't find a case number for Fox-Jones either but I say still cite it. The case was shown in a pepipoo thread by a poster called sfoxjones, and if it doesn't actually exist as a small claim win then I would expect PE to rebut that point in their evidence pack. It's not for you to err on the side of caution.

    The only thing to be cautious about is, if you submit your appeal online to POPLA, I don't think all that wording will go through in the restricted wordcount box. So check that when you get an acknowledgement of the submission. Or just post it 1st class (get a free proof of posting from the PO) with a POPLA form stapled firmly to the front, downloaded from the BPA website - maybe it's on the POPLA website as well but I know it's on the BPA site!

    Tick 3 out of 4 POPLA appeal points (just not the stolen car one).
    Last edited by Coupon-mad; 30-11-2013 at 6:03 PM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the breadcrumb trail, top of page: Household & Travel > Motoring > Parking Tickets, Fines & Parking & READ THE 'NEWBIES' FAQS THREAD.
    DON'T read old advice to ignore, unless in Scotland/NI.

    • 4consumerrights
    • By 4consumerrights 30th Nov 13, 6:29 PM
    • 1,960 Posts
    • 2,860 Thanks
    4consumerrights
    7. NO CONTRACT WITH THE DRIVER.

    There is no contract between PCC and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. This is because requirements of ‘forming a contract’ such as a meeting of minds, agreement, certainty of terms etc. were not satisfied.
    Class Clown may I suggest the following tweak to the above section:

    No contract was formed between the driver and ParkingEye on the day the alleged parking breach occurred due to the driver not seeing any signage as documented above under the inadequate signage section. Furthermore any alleged contract would be deemed unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. This is because the basic requirements for forming a contract such as a meeting of minds, agreement, certainty and acceptance of terms and exchange of "consideration" were not satisfied.


    ************************************************

    Otherwise as coupon says it is a quite a long appeal but certainly covers all bases and nice to see it written in a different "style and layout" to some of the others seen.


    • Guys Dad
    • By Guys Dad 30th Nov 13, 6:42 PM
    • 9,553 Posts
    • 8,340 Thanks
    Guys Dad
    I am not sure why you have not used the wording in my Guidance thread for core appeal points that incorporates additional points under the whole contract area.

    I reproduce it below as it is,( in my opinion !!!!!) slightly more comprehensive

    1. No right to charge motorists for overstaying

    Planning consent is required for car parks and have conditions that grant permission as the car park provides a service to the community. To bring in time limits, charges and ANPR cameras, planning consent is required for this variation. I have no evidence that planning consent was obtained for this change and I put the parking company to strict proof to provide evidence that there is planning consent to cover the current parking conditions and chargeable regime in this car park.

    Additional paragraph where the land is not owned by the client (e.g. ALDI land where they are not the landowner)
    "I note that the parking company has not been engaged by the landowner, but by a lessee or tenant of the land. I require proof from the actual landowner that their contract with the lessee/tenant gives authority for any form of parking restrictions or charges to be brought in. (There are VAT implications when a car park is a revenue generating business that may impact upon a landowner and that is why it needs to be established that they need to have granted permission in their lease.")

    2. No valid contract with landowner

    It is widely known that some contracts between landowner and parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
    In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require the parking company to produce a copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.

    It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory
    is, indeed, authorised to act on behalf of the landowner ,has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company
  • class_clown
    I am not sure why you have not used the wording in my Guidance thread for core appeal points that incorporates additional points under the whole contract area.

    I reproduce it below as it is,( in my opinion !!!!!) slightly more comprehensive

    1. No right to charge motorists for overstaying

    Planning consent is required for car parks and have conditions that grant permission as the car park provides a service to the community. To bring in time limits, charges and ANPR cameras, planning consent is required for this variation. I have no evidence that planning consent was obtained for this change and I put the parking company to strict proof to provide evidence that there is planning consent to cover the current parking conditions and chargeable regime in this car park.

    Additional paragraph where the land is not owned by the client (e.g. ALDI land where they are not the landowner)
    "I note that the parking company has not been engaged by the landowner, but by a lessee or tenant of the land. I require proof from the actual landowner that their contract with the lessee/tenant gives authority for any form of parking restrictions or charges to be brought in. (There are VAT implications when a car park is a revenue generating business that may impact upon a landowner and that is why it needs to be established that they need to have granted permission in their lease.")

    2. No valid contract with landowner

    It is widely known that some contracts between landowner and parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
    In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require the parking company to produce a copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.

    It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory
    is, indeed, authorised to act on behalf of the landowner ,has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company
    Originally posted by Guys Dad
    To be brutally honest, I couldn't find that thread...is it stickied?

    But yes, why not add yet more too what is already the longest POPLA ever conceived

    Thanks though - I've added a slightly tweaked version of point 2 under my point 4 (contract with landowner).

    Part 1, however, simply hurts my brain too much and I just can't process how to juggle it in without adding under a different sub-heading...that would take me well over 3,000 words and even I think that's a bit too crazy...in a blind test the adjudicator won't be able to tell my appeal apart from the PE evidence pack
  • class_clown
    The only thing to be cautious about is, if you submit your appeal online to POPLA, I don't think all that wording will go through in the restricted wordcount box. So check that when you get an acknowledgement of the submission. Or just post it 1st class (get a free proof of posting from the PO) with a POPLA form stapled firmly to the front, downloaded from the BPA website - maybe it's on the POPLA website as well but I know it's on the BPA site!

    Tick 3 out of 4 POPLA appeal points (just not the stolen car one).
    Originally posted by Coupon-mad
    Great - thank you so much for your labours. Not just for my case but the many others you clearly dedicate many hours to.

    I think I'll go postal, it wasn't my initial intention, but I've made a big point of the layout and although it should have no impact in the ruling, I'll feel happier knowing I'm giving something physical.

    Just numbering each page, putting a note of the POPLA reference on each page and giving it one final sub and hopefully I'll be ready to send.
    • Guys Dad
    • By Guys Dad 1st Dec 13, 3:20 AM
    • 9,553 Posts
    • 8,340 Thanks
    Guys Dad
    To be brutally honest, I couldn't find that thread...is it stickied?

    But yes, why not add yet more too what is already the longest POPLA ever conceived

    Thanks though - I've added a slightly tweaked version of point 2 under my point 4 (contract with landowner).

    Part 1, however, simply hurts my brain too much and I just can't process how to juggle it in without adding under a different sub-heading...that would take me well over 3,000 words and even I think that's a bit too crazy...in a blind test the adjudicator won't be able to tell my appeal apart from the PE evidence pack
    Originally posted by class_clown
    http://forums.moneysavingexpert.com/showthread.php?t=4816165 This was my core appeal points thread. It worked from the right of the landowner to charge anyone upwards.

    People always assume that the landowner has the right to form a contract and only challenge the right of the PPC but this is not always the case. If there is no planning consent for a chargeable car park, then the whole edifice crumbles.

    Yes go postal with free cert of posting.
    Last edited by Guys Dad; 01-12-2013 at 3:26 AM.
  • class_clown
    All sent yesterday morning.

    Tracker service from RM showing that the evidence is at the PO Box but hasn't been collected or signed for.

    Deadline is today, any cause for concern? Or does the fact that it's THERE constitute a satisfaction of the "must be received within 28 days" condition?
    • 4consumerrights
    • By 4consumerrights 3rd Dec 13, 1:57 PM
    • 1,960 Posts
    • 2,860 Thanks
    4consumerrights
    I think it must be received by the 28 day period - though others may be able to confirm this better.

    IMO - also submit it online - POPLA have increased their word count to allow online appeals I've recently found. The only problem is that when they acknowledge on-line often all the paragraphs merge. The way around this though is to then submit the document again under additional evidence via the POPLA email address and attaching it as a word doucment - This has worked for me.
  • class_clown
    I think it must be received by the 28 day period - though others may be able to confirm this better.

    IMO - also submit it online - POPLA have increased their word count to allow online appeals I've recently found. The only problem is that when they acknowledge on-line often all the paragraphs merge. The way around this though is to then submit the document again under additional evidence via the POPLA email address and attaching it as a word doucment - This has worked for me.
    Originally posted by 4consumerrights
    Good work, thanks.

    It could just be my machine, but just a general note of interest for anyone else who seeks to do this. The POPLA website happily accepted my images, but it did not allow me to submit my written evidence, either as a .doc file OR a .pdf despite the webpage communicating to the contrary.
    • Redx
    • By Redx 3rd Dec 13, 4:34 PM
    • 12,747 Posts
    • 15,327 Thanks
    Redx
    Good work, thanks.

    It could just be my machine, but just a general note of interest for anyone else who seeks to do this. The POPLA website happily accepted my images, but it did not allow me to submit my written evidence, either as a .doc file OR a .pdf despite the webpage communicating to the contrary.
    Originally posted by class_clown
    when we tried with a popla appeal on line it rejected it, cannot remember the exact error now, but I have since read that it may fail in firefox but may be ok in internet explorer and opera - just a thought
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • 4consumerrights
    • By 4consumerrights 3rd Dec 13, 4:37 PM
    • 1,960 Posts
    • 2,860 Thanks
    4consumerrights
    Good work, thanks.

    It could just be my machine, but just a general note of interest for anyone else who seeks to do this. The POPLA website happily accepted my images, but it did not allow me to submit my written evidence, either as a .doc file OR a .pdf despite the webpage communicating to the contrary.
    Originally posted by class_clown

    I had the same trouble - with one appeal I submitted for someone . The original POPLA appeal acknoweledgement came back but with no paragraph breaks. I then attached it as a doc file but POPLA couldn't read the written document this way - eventually accepted as word doc.
  • class_clown
    when we tried with a popla appeal on line it rejected it, cannot remember the exact error now, but I have since read that it may fail in firefox but may be ok in internet explorer and opera - just a thought
    Originally posted by Redx
    Interesting - I'm a Chrome user personally. Just tried IE which also came back with the same error that 4consumerrights cited above.

    May just be a temporary issue, but one worth highlighting...

    ...in snail mail we trust!
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