Parking Eye

Coupon-mad

Coupon-mad wrote: »

Please read a few threads - ANY PPC - about 'POPLA appeal wording' (second stage where you will win if you word it right with our help!).

So you have of course read up on POPLA as advised already above, you must have easily found threads with Parking Eye POPLA appeals as I have written and read LOADS on here. Now that you will have read threads with POPLA appeals, just draft your POPLA appeal based on the examples you find by reading threads on the first few pages on the forum. Many of those we see are in free car parks so remove any sentences which do not apply, when copying/pasting good appeals together into one big one for your case.

Lu89 wrote: »

I know there are lots of posts on this but I am getting a bit confused.
I received a parking eye charge after parking in a carpark under the advise of an estate agent for a house viewing, they advised me not to pay for parking as it was only going to be a short period...

In your POPLA appeal mention this fact but worded as 'the driver was relying upon a previously-made verbal contract with the estate agent who hosted the viewing of a property there. The Estate Agent advised the driver not to pay for parking for such a short viewing time and no signs were seen which conveyed any other contract to the driver.'

Show us your draft appeal once you have cobbled something together which makes sense and does not name the driver.

Lu89

Thanks for your advice so far, I have read lots of forum posts and have cobbled a draft together. I am sure it needs a lot more added to it and could be structured better but I guess it is a start. Any advise on what else should be included would be greatly appreciated, as you can tell this is not my strong point!!

On 12/6/13, Parking Eye issued a parking charge notice because the above vehicle was allegedly recorded on their automatic number plate recognition system as having stayed in the car park at XXXXXXXXX without having paid the appropriate fee in the pay and display.

I appeal against the decision from Parking Eye on the basis that the parking charge exceeded the appropriate amount. If any charge is due at all this should amount to £2 for the period of time that the vehicle was parked there.

The amount of the charge is disproportionate to the loss incurred by Parking Eye and is punitive, contravening the Unfair Contract Terms Act 1997. The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that: "Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver." In this case, Parking Eye has failed to provide any calculation to show how the £100 figure is arrived at, whether as an actual or pre-estimated loss. It is the Appellant's position that Parking Eye has suffered no loss whatsoever in this case.

The driver was advised to park there by a local estate agent whilst visiting a property nearby, the driver was relying upon a previously-made verbal contract with the estate agent who hosted the viewing of a property there. The Estate Agent advised the driver not to pay for parking for such a short viewing time and no signs were seen which conveyed any other contract to the driver.

The Appellant therefore invites the Adjudicator to uphold the appeal, and to cancel the parking charge.

Coupon-mad

Well that's two paragraphs done, maybe another 5 or 6 to add:

https://forums.moneysavingexpert.com/discussion/comment/61968045#Comment_61968045

It doesn't read as if you've found ANY POPLA appeals yet so there's a link to lots.

Umkomaas

Hi lu89, good start.

You need more added, so that you have a long list of issues you are putting PE to strict proof on.

An itemised list of their genuine pre-estimate of losses. They are currently using a template, listing such things as car park management costs, office costs, ANPR erection and maintenance, membership of various bodies - none of these are allowable as losses - they are business operating costs. Look around the various PE threads to find their list and place it into your appeal, point by point, with words to the effect that the following (the list as produced by PE) are disputed as losses; they are business operating costs incurred whether or not a parking event occurred.

ANPR maintenance records

Name of the landowner with whom PE have a contractual agreement to issue proceedings.

Contemporaneous copy of the contract with the landowner evidencing this - a (PE) template confirming 'an agreement' (often signed by an office junior of the landowner or managing agent) is not a copy of the contract and is not acceptable to you.

I think that will do for now from me - so a bit more research and drafting and we're on our way to a decent POPLA appeal.

Others on here may chip in with other points to raise - the more the merrier, and the more work PE has to do to prove their case - you don't have to prove yours.

Keep looking at the POPLA decisions 'sticky' to see what has won and what hasn't and build up your knowledge on this:

https://forums.moneysavingexpert.com/discussion/4488337

Keep going...... HTH

Lu89

any better? Thanks again for all the help

To Whom it may concern,

On 12/6/13,Parking Eye issued a parking charge notice because the above vehicle wasallegedly recorded on their automatic number plate recognition system as havingstayed in the car park at XXXXXXXXX withouthaving paid the appropriate fee in the pay and display.
I appeal against the decision from Parking Eyefor the following reasons:

The parking charge exceeded the appropriateamount. If any charge is due at all this should amount to £2 for the period oftime that the vehicle was parked there.

The amount of the charge is disproportionateto the loss incurred by Parking Eye and is punitive, contravening the UnfairContract Terms Act 1997. The Department forTransport guidelines state, in Section 16 Frequently Asked Questions, that:"Charges for breaking a parking contract must be reasonable and a genuinepre-estimate of loss. This means charges must compensate the landholder onlyfor the loss they are likely to suffer because the parking contract has beenbroken. For example, to cover the unpaid charges and the administrative costsassociated with issuing the ticket to recover the charges. Charges may not beset at higher levels than necessary to recover business losses and theintention should not be to penalise the driver." In this case, Parking Eyehas failed to provide any calculation to show how the £100 figure is arrivedat, whether as an actual or pre-estimated loss. It is the Appellant's positionthat Parking Eye has suffered no loss whatsoever in this case.

The Appellant refers the Adjudicator to the recent Appeal Courtdecision 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 ofPrivate Parking Charges. It was stated that: "If those charges areconsideration 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 ofthe Court was that "I would hold, therefore, that the monies that VCS collectedfrom motorists by enforcement of parking charges were not consideration movingfrom the landowner in return for the supply of parking services." In otherwords, they are not, as the Operator asserts, a contractual term. If they werea contractual term, the Operator would have to provide a VAT invoice, toprovide a means of payment at the point of supply, and to account to HMRC forthe VAT element of the charge. The Appellant asserts that these requirementshave not been met. It must therefore be concluded that the Operator's chargesare in fact damages, or penalties, for which the Operator must demonstrate hisactual, or pre-estimated, losses, as set out above.

[FONT="&amp]Secondly the BPA Code of Practice indicates at paragraph 13.4 thatthe Respondent should “allow the driver a reasonable period to leave theprivate car park after the parking contract has ended, before you takeenforcement action.” If the signage in the car park provides no indication ofthe period of time it allows and this is unreasonable, especially asParking eye rely on pictures taken of a vehicle at firstarrival and then when leaving (not showing any evidence at all of actualparking time). So, there is no evidence that the respondent can produce toindicate that my vehicle was parked for more than the arbitrary time limit theyare relying upon and no breach of contract by the driver can be demonstrated bytheir evidence at all. On that basis the sum claimed fails to meet thestandards set out in paragraph 19 of the BPA Code of Practice. [/FONT]

On the above date the driver was advised topark there by a local estate agent whilst visiting a property nearby, thedriver was relying upon a previously-made verbal contract with the estate agentwho hosted the viewing of a property there. The Estate Agent advised the drivernot to pay for parking for such a short viewing time and no signs were seenwhich conveyed any other contract to the driver.

Private Parking Company charges are unfair terms (and therefore not binding)pursuant to the Unfair Terms in Consumer Contracts Regulations (1999). Inparticular, Schedule 2 of those Regulations gives an indicative (andnon-exhaustive) list of terms which may be regarded as unfair and includes atSchedule 2(1)(e) "Terms which have the object or effect of requiring anyconsumer who fails to fulfil his obligation to pay a disproportionately highsum in compensation." Furthermore, Regulation 5(1) states that: "Acontractual term which has not been individually negotiated shall be regardedas unfair if, contrary to the requirement of good faith, it causes asignificant imbalance in the parties' rights and obligations arising under thecontract, to the detriment of the consumer" and 5(2) states: "A termshall always be regarded as not having been individually negotiated where ithas been drafted in advance and the consumer has therefore not been able toinfluence the outcome”.

Parking eye has not provided me with anyevidence that it is lawfully entitled to demand money from the driver, sincethey do not own nor have any interest or assignment of title of the land inquestion. I do not believe that the Operator has the necessary legal capacityto enter into a contract with a driver of a vehicle parking in the car park, orindeed to allege a breach of contract. I would require POPLA to check whether parkingeye have provided a full copy of the actual site agreement/contract with thelandowner/occupier (not just a signed slip of paper saying it exists) and checkwhether that contract specifically enables them to pursue parking charges inthe courts, and whether that contract is compliant with the requirements setout in the BPA Code of Practice.

TheAppellant asserts that, for the reasons stated above, no “relevant obligation”has been created, and that the parking charge would not be recoverable by theOperator under common civil law. The Appellant therefore invites theAdjudicator to allow the appeal.

Coupon-mad

Getting there, but have another look tomorrow as it's a little disjointed and the fonts need sorting out to match.

And I saw nothing about:

- signage
- contract with landowner
- ANPR
- no evidence of actual parking time.


here are a couple I wrote which mention those points:

http://forums.pepipoo.com/index.php?showtopic=79545&st=0&gopid=826768

https://forums.moneysavingexpert.com/discussion/comment/62229369#Comment_62229369

Doesn't matter that the second one isn't PE as it was a camera issued fake PCN so a similar case (except an alleged overstay as most are).

Lu89

Thanks. the fonts were ok in my word document but went different when I copied it over. will have another look today.

Lu89

Font still playing up but obviously wouldn't send it like that!
To Whom it may concern,

On 12/6/13,Parking Eye issued a parking charge notice because the above vehicle wasallegedly recorded on their automatic number plate recognition system as havingstayed in the car park at XXXXXXXXX withouthaving paid the appropriate fee in the pay and display.

I appeal against the decision from Parking Eyefor the following reasons:



The parking charge exceeded the appropriateamount. If any charge is due at all this should amount to £2 for the period oftime that the vehicle was parked there.

The amount of the charge is disproportionateto the loss incurred by Parking Eye and is punitive, contravening the UnfairContract Terms Act 1997. The Department for Transport guidelines state, in Section16 Frequently Asked Questions, that: "Charges for breaking a parkingcontract must be reasonable and a genuine pre-estimate of loss. This meanscharges must compensate the landholder only for the loss they are likely tosuffer because the parking contract has been broken. For example, to cover theunpaid charges and the administrative costs associated with issuing the ticketto recover the charges. Charges may not be set at higher levels than necessaryto recover business losses and the intention should not be to penalise thedriver." In this case, Parking Eye has failed to provide any calculationto show how the £100 figure is arrived at, whether as an actual orpre-estimated loss. It is the Appellant's position that Parking Eye hassuffered no loss whatsoever in this case.

The Appellant refers the Adjudicatorto 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 todetermine 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 willnot be." The ruling of the Court was that "I would hold, therefore,that the monies that VCS collected from motorists by enforcement of parkingcharges were not consideration moving from the landowner in return for thesupply of parking services." In other words, they are not, as the Operatorasserts, a contractual term. If they were a contractual term, the Operatorwould have to provide a VAT invoice, to provide a means of payment at the pointof supply, and to account to HMRC for the VAT element of the charge. TheAppellant asserts that these requirements have not been met. It must thereforebe concluded that the Operator's charges are in fact damages, or penalties, forwhich the Operator must demonstrate his actual, or pre-estimated, losses, asset out above.



Parking eye arerelying on pictures taken of a vehicle at first arrival and then when leaving(not showing any evidence at all of actual parking time). So, there is noevidence to indicate that my vehicle was parked for more than the arbitrarytime limit the Operator is relying upon and no breach of contract by the drivercan be demonstrated by their evidence at all. On that basis the sum claimedfails to meet the standards set out in paragraph 19 of the BPA Code of Practice.Parking eye have also failed to show me any evidence that the cameras in thiscar park comply with the requirements of the BPA Code of Practice part 21(ANPR). I require POPLA to consider that particular section of the Code in itsentirety and decide whether the Operator has shown proof of contemporaneousmanual checks and full compliance with section 21 of the Code.



Secondly the BPA Code ofPractice indicates at paragraph 13.4 that the Respondent should “allow thedriver a reasonable period to leave the private car park after the parkingcontract has ended, before you take enforcement action.” If the signage in thecar park provides no indication of the period of time it allows and this isunreasonable, especially as Parking eye rely on pictures taken of a vehicle at firstarrival and then when leaving (not showing any evidence at all of actualparking time). So, there is no evidence that the respondent can produce toindicate that my vehicle was parked for more than the arbitrary time limit theyare relying upon and no breach of contract by the driver can be demonstrated bytheir evidence at all. On that basis the sum claimed fails to meet thestandards set out in paragraph 19 of the BPA Code of Practice.



On the above date the driver was advised topark there by a local estate agent whilst visiting a property nearby, thedriver was relying upon a previously-made verbal contract with the estate agentwho hosted the viewing of a property there. The Estate Agent advised the drivernot to pay for parking for such a short viewing time and no signs were seenwhich conveyed any other contract to the driver.


Private Parking Company charges are unfair terms (and therefore not binding)pursuant to the Unfair Terms in Consumer Contracts Regulations (1999). Inparticular, Schedule 2 of those Regulations gives an indicative (andnon-exhaustive) list of terms which may be regarded as unfair and includes atSchedule 2(1)(e) "Terms which have the object or effect of requiring anyconsumer who fails to fulfil his obligation to pay a disproportionately highsum in compensation." Furthermore, Regulation 5(1) states that: "Acontractual term which has not been individually negotiated shall be regardedas unfair if, contrary to the requirement of good faith, it causes asignificant imbalance in the parties' rights and obligations arising under thecontract, to the detriment of the consumer" and 5(2) states: "A termshall always be regarded as not having been individually negotiated where it hasbeen drafted in advance and the consumer has therefore not been able toinfluence the outcome”.

Parking eye has not provided me with any evidence that it is lawfully entitledto demand money from the driver, since they do not own nor have any interest orassignment of title of the land in question. I do not believe that the Operatorhas the necessary legal capacity to enter into a contract with a driver of avehicle parking in the car park, or indeed to allege a breach of contract. Iwould require POPLA to check whether parking eye have provided a full copy ofthe actual site agreement/contract with the landowner/occupier (not just asigned slip of paper saying it exists) and check whether that contractspecifically enables them to pursue parking charges in the courts, and whetherthat contract is compliant with the requirements set out in the BPA Code ofPractice.



The signage inthe car park was also difficult to read and understand due to the barelylegible size of the small print. I contend that the signs and any core parkingterms UKPC are relying upon were too small for the driver to discern whendriving in. On the above date it was market day in the town and signs on theentrance to the car park were completely obscured by passers-by.



The Appellant asserts that, for the reasonsstated above, no “relevant obligation” has been created, and that the parkingcharge would not be recoverable by the Operator under common civil law. TheAppellant therefore invites the Adjudicator to allow the appeal.

Coupon-mad

I would remove 'secondly' as that's not your second point!

And you have copied & pasted UKPC from another POPLA appeal so that needs changing to PE - and make sure there are no others like that!

And I would make MUCH more of the signage thing because in a P&D car park it's vital you show that the information about pay and display was not clear so no contract was formed.

So what about looking at the recent Fistral beach case here:

https://forums.moneysavingexpert.com/discussion/4632455

In post #60 that version has the most about signage we've seen yet (and like yours it was a P&D car park so this point of appeal about 'non compliant signs forimg no contract' is vitally important). You will also see quotes from case law and the BPA Code of Practice and stuff about Unfair Contract Terms which you can add into yours.

Just make sure you don't try to just copy & paste the finished appeal into the limited word-count box for POPLA your appeal will be chopped off - and they won't tell you or ask for more info. Attach it as a PDF or post it.

Lu89

Right, here is my final attempt as need to post it off today, Will this be ok?

To Whom it may concern,

On 12/6/13,Parking Eye issued a parking charge notice because the above vehicle wasallegedly recorded on their automatic number plate recognition system as havingstayed in the car park at XXXXXXXXX withouthaving paid the appropriate fee in the pay and display.

I appeal against the decision from Parking Eyefor the following reasons:



The parking charge exceeded the appropriateamount. If any charge is due at all this should amount to £2 for the period oftime that the vehicle was parked there.

The amount of the charge is disproportionateto the loss incurred by Parking Eye and is punitive, contravening the UnfairContract Terms Act 1997. The Department for Transport guidelines state, in Section16 Frequently Asked Questions, that: "Charges for breaking a parkingcontract must be reasonable and a genuine pre-estimate of loss. This meanscharges must compensate the landholder only for the loss they are likely tosuffer because the parking contract has been broken. For example, to cover theunpaid charges and the administrative costs associated with issuing the ticketto recover the charges. Charges may not be set at higher levels than necessaryto recover business losses and the intention should not be to penalise thedriver." In this case, Parking Eye has failed to provide any calculationto show how the £100 figure is arrived at, whether as an actual orpre-estimated loss. It is the Appellant's position that Parking Eye hassuffered no loss whatsoever in this case.

The Appellant refers the Adjudicatorto 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 todetermine 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 willnot be." The ruling of the Court was that "I would hold, therefore,that the monies that VCS collected from motorists by enforcement of parkingcharges were not consideration moving from the landowner in return for thesupply of parking services." In other words, they are not, as the Operatorasserts, a contractual term. If they were a contractual term, the Operatorwould have to provide a VAT invoice, to provide a means of payment at the pointof supply, and to account to HMRC for the VAT element of the charge. TheAppellant asserts that these requirements have not been met. It must thereforebe concluded that the Operator's charges are in fact damages, or penalties, forwhich the Operator must demonstrate his actual, or pre-estimated, losses, asset out above.

Parking eye arerelying on pictures taken of a vehicle at first arrival and then when leaving(not showing any evidence at all of actual parking time). So, there is noevidence to indicate that my vehicle was parked for more than the arbitrarytime limit the Operator is relying upon and no breach of contract by the drivercan be demonstrated by their evidence at all. On that basis the sum claimedfails to meet the standards set out in paragraph 19 of the BPA Code of Practice.Parking eye have also failed to show me any evidence that the cameras in thiscar park comply with the requirements of the BPA Code of Practice part 21(ANPR). I require POPLA to consider that particular section of the Code in itsentirety and decide whether the Operator has shown proof of contemporaneousmanual checks and full compliance with section 21 of the Code.



Furthermore the BPA Code ofPractice indicates at paragraph 13.4 that the Respondent should “allow thedriver a reasonable period to leave the private car park after the parkingcontract has ended, before you take enforcement action.” If the signage in thecar park provides no indication of the period of time it allows and this isunreasonable, especially as Parking eye rely on pictures taken of a vehicle at firstarrival and then when leaving (not showing any evidence at all of actualparking time). So, there is no evidence that the respondent can produce toindicate that my vehicle was parked for more than the arbitrary time limit theyare relying upon and no breach of contract by the driver can be demonstrated bytheir evidence at all. On that basis the sum claimed fails to meet thestandards set out in paragraph 19 of the BPA Code of Practice.



On the above date the driver was advised topark there by a local estate agent whilst visiting a property nearby, thedriver was relying upon a previously-made verbal contract with the estate agentwho hosted the viewing of a property there. The Estate Agent advised the drivernot to pay for parking for such a short viewing time and no signs were seenwhich conveyed any other contract to the driver.


Private Parking Company charges are unfair terms (and therefore not binding)pursuant to the Unfair Terms in Consumer Contracts Regulations (1999). Inparticular, Schedule 2 of those Regulations gives an indicative (andnon-exhaustive) list of terms which may be regarded as unfair and includes atSchedule 2(1)(e) "Terms which have the object or effect of requiring anyconsumer who fails to fulfil his obligation to pay a disproportionately highsum in compensation." Furthermore, Regulation 5(1) states that: "Acontractual term which has not been individually negotiated shall be regardedas unfair if, contrary to the requirement of good faith, it causes asignificant imbalance in the parties' rights and obligations arising under thecontract, to the detriment of the consumer" and 5(2) states: "A termshall always be regarded as not having been individually negotiated where ithas been drafted in advance and the consumer has therefore not been able toinfluence the outcome”.

Parking eye has not provided me with any evidence that it is lawfully entitledto demand money from the driver, since they do not own nor have any interest orassignment of title of the land in question. I do not believe that the Operatorhas the necessary legal capacity to enter into a contract with a driver of avehicle parking in the car park, or indeed to allege a breach of contract. Iwould require POPLA to check whether parking eye have provided a full copy ofthe actual site agreement/contract with the landowner/occupier (not just asigned slip of paper saying it exists) and check whether that contractspecifically enables them to pursue parking charges in the courts, and whetherthat contract is compliant with the requirements set out in the BPA Code ofPractice.



The signage inthe car park was also difficult to read and understand due to the barelylegible size of the small print. I contend that the signs and any core parkingterms Parking eye are relying upon were too small for the driver to discernwhen driving in especially given that on the above date it was market day inthe town and signs on the entrance to the car park were completely obscured bypassers-by.I contend that the signs in that car park (wording, position, clarity andpositioning) do not comply and fail to properly warn/inform the driver of theterms and any consequences for breach (as in the case of Excel ParkingServices Ltd v Martin Cutts, 2011). BPAOperational Requirements Section 18.2 states ‘Entrance signs MUST follow someminimum general principles and be in standard format. The size of the sign MUSTtake into account the expected speed of vehicles approaching the car park, andit is recommended that you follow Department for Transport guidance.

The Appellant asserts that, for the reasonsstated above, no “relevant obligation” has been created, and that the parkingcharge would not be recoverable by the Operator under common civil law. TheAppellant therefore invites the Adjudicator to allow the appeal.