not the driver

Guys_Dad

hang3r wrote: »

You could always upload the file to one of those storage websites (e.g. speedyshare.com) and a give a link to it here. Or copy paste the text from the file to pastebin .com as not to clutter the forum.

And don't forget to make sure your POPLA appeal is also sent by surface mail with a potage receipt as the POPLA website was had problems with long appeals - strangely no reported problems with PPC appeals, though.

seadreaming

Thanks hang3r and Guys Dad
I've not used speedyshare before so hopefully I've done it right and the link below gets people to the right place.
I'll certainly be sending a hard copy to popla on a 'sign for' basis.

The bits in italics in the draft letter are the parts that I think are either surplus to requirement, possibly not relevant to my appeal or in a couple of instances I don't really understand the information I read on other posts.

http://speedy.sh/FvKQe/draft-letter.doc

Thanks for your input - & to all those out there whose letters & advice have helped me put this one together.
SD

seadreaming

I asked a couple of friends to try the link to get to the appeal letter & they were asked to download a program but their firewall/antivirus software advised them against it. Could I paste the draft letter onto the forum and then maybe it could be deleted after a few days? (Unless of course people decide it is a useful draft for others for the future).
Thanks
SD

seadreaming

I've had to resort to pasting the letter onto here - I'm guessing there must the facility for me to edit & take it off in a few days if that is the usual practice with anything long.
Anyway I really need to get the letter off this weekend, Mon at latest so any feedback most gratefully received.
The bits in italics in the draft letter are the parts that I think are either surplus to requirement, possibly not relevant to my appeal or in a couple of instances I don't really understand the information I read on other posts.

Huge thanks
SD
Dear POPLA,
APPEAL RE: PARKING EYE CHARGE ******/******,********* CAR PARK **/**/2013, VEHICLE REG: **** ***


The keeper received an invoice from Parking Eye on ……… saying that the driver overstayed in a car park by 11 minutes. The keeper immediately appealed to Parking Eye and that appeal was rejected on the grounds that the keeper did not provide sufficient evidence to show that the driver did not break the terms and conditions of on the signage. Parking Eye also stated that a number of the queries were of a genetic nature, a number they have seen before.
The points the keeper would like to make in respect to this appeal are:
1) Appeal form not sent within the required 35 days
Despite the keeper requesting within the required time frame to Parking Eye for the necessary information to appeal to POPLA, Parking eye failed to accept or reject the appeal within the necessary 35 days and if rejected to send an appeal form with a verification code on it. As such Parking Eye has breached version 2 of the British Parking Association (BPA) ‘Code of Practice for Parking on Private Land’ which was in force at the time Parking Eye sent out the invoice.
Don’t know if this extra bit is needed - Parking Eye only sent out an appeal form after the 35 days when the keeper wrote to Parking Eye requesting that they now cancel the invoice they had sent. However Parking Eye sent out an appeal form with no verification code and the keeper had to again contact Parking Eye for appropriate paperwork.
2) Notice to Registered Keeper did not identify the creditor
The ‘notice to registered keeper did not identify who was the creditor and is therefore non-compliant with PoFA 2012 regulations.
Not sure I can put point 2 in as on the notice letter it says ‘... in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable to Parking Eye Ltd(as the Creditor)’
3) Request that Parking Eye provides proof of ownership of the land or any contract from the land owner providing authority to collect any charges
Parking Eye does not own the car park and the keeper disputes that Parking Eye has the authority to enter into contracts regarding the land or to pursue alleged charges.
Parking Eye has not provided any evidence that it is lawfully entitled to demand money from the driver or keeper. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. The keeper does not believe that the Operator has the necessary legal capacity to enter into a contract with a driver or keeper of a vehicle parking in the car park they do not own, or indeed the lawful status to allege a breach of contract in their name.
Parking Eye must provide documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier (not just a signed slip of paper saying it exists). To comply with the Code of Practice, the contract needs to specifically grant Parking Eye the right to pursue parking charges in the courts in their own name, as creditor.

4) The parking charge is disproportionate to parking on the site
Parking Eye is requesting payment from the Registered Keeper under Schedule 4 of the Protection of Freedoms Act 2012. There is no charge for parking at the car park in question and Parking Eye have failed to show that this standard fixed charge in that car park is a genuine pre-estimate of loss. Parking Eye have also not formed any fair contract with the driver to justify the amount demanded and have not complied with all aspects of the BPA Code of Practice. By making free parking available to prospective customers the owners and/or management of the retail park are clearly giving such prospective customers permission to park there. However, because the car park is free, the driver gave nothing to them in return for permission to park i.e. no consideration passed from the driver to them (or to Parking Eye), and where there is no consideration there is no contract.
Parking Eye appear to be attempting to enforce this charge under paragraph B 19.5 of the BPA Code of Practice and must be required to validate this argument by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this particular 'contravention'. Operators cannot lawfully include their operational day-to-day running costs in any 'loss' claimed.
As such, the parking 'charge' notice is disproportionate to the appropriate amount.


Read this on one letter but don’t really get it – ‘The keeper is not liable for the parking charge and the vehicle was not improperly parked. The keeper says they have not met all the conditions imposed by this Act and so there is no obligation or liability on them at all.’
5) Unlawful Penalty Charge
Related to the points made above in section 4: private parking tickets unrelated to any genuine loss are unenforceable penalties, as was found in the Parking Eye v Smith case also in Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review decision by Circuit Judge, February 2011), and UKCPS v Murphy (April 2012).
6) Parking Eye does not specify the reasonable period permitted to arrive and leave the land after the end of the contract prior to taking enforcement action
Parking Eye is relying simply on pictures taken of a vehicle at first arrival and then when leaving. These pictures show no evidence at all of actual parking time or where the car was after driving in. The invoice fails to clarify the issue and therefore fails to meet the requirements for a Notice to Keeper under the Protection of Freedoms Act 2012. The wording from the Notice to Keeper quoted fails to specify precisely which term of the alleged contract was allegedly breached; the Notice therefore fails to comply with the Protection of Freedoms Act 2012, Schedule 4 Clause 9(2)(c) and no keeper liability can arise.
The British Parking Association Code of Practice clearly states that drivers must be given a grace period (i) when they enter the car park, to queue for a space, park and then read the (high up on a pole) sign to decide whether they wish to remain and (ii) at the end of the visit to load the shopping bags, return a trolley and then queue to leave the car park at the end of the parking; the keeper contends that this would amount to more than the nominal 11 minutes of the alleged overstay.
This is actually a car park used by driving instructors to teach people how to park and it has been known for other drivers to be stuck waiting to park or stuck waiting to get out of a space whilst a learner driver completes various manoeuvres.
7) Camera compliance
Parking Eye have failed to show the keeper any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR). The keeper requests that POPLA considers whether the Operator has shown documented evidence of contemporaneous manual checks of the cameras, clocks and related machinery in that particular car park. These maintenance checks are a requirement of section 21 of the Code.
8) Non-Compliant Signage
i) The signage fails to comply with the BPA Code of Practice Appendix B in that the entrance signage to this parking site is not readable bythe driver of a moving vehicle as he enters the land. As the signs fail to properly inform drivers of the full terms & conditions in an appropriate place e.g. the entrance sign is currently on the side of the entrance/exit that vehicles come out of, and at a low enough height at the entrance, the elements of a contract have not been met. Any alleged contract would be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late.
ii) Parking Eye have not provided signage of sufficient written text size or(some of it is in large print and then a lot of info in small print at the bottom) at a suitable height to be read from the vehicle at the entrance or at any location on the premises. They may claim that generic signage is displayed around the car park on poles but this does not meet the requirements for consideration when forming the alleged contract.
iii) The keeper believes that the signs and any core parking terms Parking Eye are relying upon are too high and at an inappropriate place for any driver to see, read or understand when driving into this car park. Parking Eye needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are placed at the entrance and whether a driver still in a car can see and read them when deciding to drive in given that there are likely to be cars leaving the car park in front of the sign as well as cars behind that the driver will need to be aware of trying to get in. Any terms displayed, do not alter the contract which must be shown in full at the entrance.
iv) The keeper believes that the signs failed to properly and clearly warn/inform the driver of the terms in this car park and any consequences for breach, as was found in a comparable camera-reliant car park in the case of Excel Parking Services Ltd v Martin Cutts, 2011.

v) Parking Eye needs to prove that the driver actually saw, read and accepted the terms, which means that the driver and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding.
9) BREACH OF the Unfair Terms in Consumer contract Regulations 1999
Finally, I believe Parking Eye are in breach of the Unfair Terms in Consumer Contract Regulations 1999 (UTCCR): Schedule 2, paragraph 1:
terms may be unfair if they have the object or effect of:
(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.
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.



Given all of the above points I respectfully request that this appeal be allowed and the charge cancelled.
Yours sincerely

Guys_Dad

On your point 3, PE are now using the POPLA suggested "Witness statement" purporting to be signed by the landowner confirming that PE has the lawful authority.

Unfortunately, PE have been reported on here as claiming they were the landowner and signing the whole statement themselves without any reference to the landowner.

Now it is my guess that they are just too thick to understand the template witness statement, but if I were you I would say something along the lines of

"There is comment in the public domain from other motorists who have challenged the validity of the contract that Parking Eye are using a witness statement as recommended by POPLA purporting to have been signed by the landowner as witness to Parking Eye having a contract that allows them to pursue the motorists for the charge, but actually signed by one of their directors.

In view of this, I put Parking Eye to strict proof that the Witness Statement, if used, was, in fact, signed by the Landowner and require a letter to that effect on the Landowner's headed notepaper confirming that (a) the witness does in fact work for te landowner and (b) has had sight of the contract in question"

Have a look here https://forums.moneysavingexpert.com/discussion/4688485 Page 2 post 38 onwards.

kev_min

As Parking Eye are [STRIKE]not[/STRIKE] supprisingly, sailing close to the wind with these witness statements would the be any value in :-

1. Approaching the landowner and asking for a copy of HIS contract (redacted of financial detail) with them to verify it?

2. For those with deeper pockets to seek the PPC's old favourate, the norwich pharmaceutical order, forcing them to disclose these documents?

Either way something needs to be done about these [STRIKE]MUP[/STRIKE] [STRIKE]CHAN[/STRIKE] gentlemen and the way they [STRIKE]try to[/STRIKE] play roughshod over motorist.

just my 2p worth.

Guys_Dad

kev_min wrote: »

As Parking Eye are [STRIKE]not[/STRIKE] supprisingly, sailing close to the wind with these witness statements would the be any value in :-

1. Approaching the landowner and asking for a copy of HIS contract (redacted of financial detail) with them to verify it? Why? He will be on the PPC's side and doesn't like motorists who break his rules.

2. For those with deeper pockets to seek the PPC's old favourate, the norwich pharmaceutical order, forcing them to disclose these documents? You can try that in court, but since POPLA came up with the Witness Statement concept, won't work at POPLA.

Either way something needs to be done about these [STRIKE]MUP[/STRIKE] [STRIKE]CHAN[/STRIKE] gentlemen and the way they [STRIKE]try to[/STRIKE] play roughshod over motorist.

just my 2p worth.

We just need to be smarter than them and keep adapting.

seadreaming

Thanks Guys Dad - I looked at the link you posted, I think it might be the the one I copied and pasted part of re the land ownership issue but I'm definitley going to put in your suggestion that specifies very clearly about proof & I like the idea of saying 'on headed paper.

point 1 - I will put in a sentence re the first appeal form not having a code on (I think Coupon Mad would say hit them with as many points as possible)
point 3 - I'll change as discussed
point 4 - I think I'll include the first sentences I put in italics re it being free parking but I think I'll take out the last paragraph in italics
point 6 - I'll take out the last paragraph I put in italics re learner drivers
point 8ii - I think I'll take out as it seems a bit repetitive

things I'm not sure about
point 2 - re who is the creditor - as Parkign Eye in the letter say they are the creditor I'm guessing I can't use this point but I thought on other forum posts re parking eye that others had included this point & the letters will be standard issue?
point 9 - should I quote all of the legal stuff in italics? I don't understand it but if others say 'yep that makes sense' then great.
Big thanks
SD

seadreaming

I'm filling out the appeal form & wondering why it asks for an e-mail address - I'm always very reluctant to hand out e-mail (& phone details) & there is nothing on the form stating that details will not be passed on to third parties. As anyone ever not put an e-mail address in?
SD

Guys_Dad

seadreaming wrote: »

I'm filling out the appeal form & wondering why it asks for an e-mail address - I'm always very reluctant to hand out e-mail (& phone details) & there is nothing on the form stating that details will not be passed on to third parties. As anyone ever not put an e-mail address in?
SD

Why not do as I do? I have 2 email accounts for personal use. The first is my real one but the second is one I use for cases such as you describe. All my "One off" email requests go there and I look at it occasionally, but it doesn't clog up my email.

For those email requests that you really don't want bothered with, use mailinator. Google it.

Personally, I wouldn't worry too much in this case as I might just want an email back that may have something in it I could use against them.