Parking Eye PCN - help with POPLA appeal please

Julzed

Many apologies for yet another Parking Eye Thread!

My daughters boyfriend has received a Parking Eye PCN for overstaying in a motorway service station, he did overstay (by 57 minutes)as he fell asleep!! I have (on his behalf) sent a soft appeal to Parking Eye, which was unsurprisingly rejected, but the POPLA code has been supplied.

I am now unsure how to best word the POPLA appeal and would be most grateful for any help anyone can provide.

Many thanks

Julzed

Just a little bump!!

Can anyone help me get started on this please?:D

many thanks:beer:

waamo

There are two big hurdles PE seem to fail on.

1. The ticket is for a breach of contract. Charges for a breach of contract must be a genuine pre-estimate of loss. The PE ticket is not. You require them to show their loss.

2. PE's contract does not confer them sufficient rights from the landowner to pursue tickets and you require them to show the contract that confers them such rights. A witness statement or the suchlike is not acceptable a suitably redacted copy of the contract is required as proper proof.

Flesh it out around those points and also read the POPLA wins thread for an idea.

Guys_Dad

Look at the POPLA Decisions sticky thread at the top of the forum.

You will see what is required to get a favourable result from POPLA. Use bits from all the successful posts and you are on a winner.

In particular, look at the recent posts of yesterday and today.

Orrin

In addition to the above check the signage meets the requirements of the BPA code of practice and also that the notice to keeper is compliant with POFA.

Coupon-mad

Julzed wrote: »

Just a little bump!!

Can anyone help me get started on this please?:D

many thanks:beer:

https://forums.moneysavingexpert.com/discussion/comment/62523345#Comment_62523345

HTH

Julzed

Orrin wrote: »

In addition to the above check the signage meets the requirements of the BPA code of practice and also that the notice to keeper is compliant with POFA.

Unfortunately, We are unable to easily go and check the signage as we are in Hampshire and the car park is in Birmingham!

How can I check the Notice to keeper is compliant with POFA please? many thanks :beer:

I don't know if I am over thinking this but looking through all the POPLA appeals, it's really difficult to see which paragraphs apply specifically to my case. I don't want to include paragraphs that will make POPLA reject the appeal as I have a very poor 19 year old relying on me to save him £100!!

In short, he did over stay by 57 minutes without buying a ticket, I've no idea if the signage is inadequate, my soft appeal to Parking Eye stated that I thought their charges were disproportionate and not a genuine pre-estimate of loss and they rejected this and given me a list of what costs they incur! I appreciate they are trying to scare people into paying by spouting all sorts of law speak but I'm going round and round in circles trying to word this and getting nowhere!,

Lastly, should I submit my appeal online to POPLA or by mail?

Many many thanks to all those who have helped so many of us finding ourselves in this situation. :T

Coupon-mad

Julzed wrote: »

Unfortunately, We are unable to easily go and check the signage as we are in Hampshire and the car park is in Birmingham!

How can I check the Notice to keeper is compliant with POFA please? many thanks :beer:

http://www.parkingcowboys.co.uk/keeper-liability/

Julzed wrote: »

I don't know if I am over thinking this but looking through all the POPLA appeals, it's really difficult to see which paragraphs apply specifically to my case. I don't want to include paragraphs that will make POPLA reject the appeal as I have a very poor 19 year old relying on me to save him £100!!

You are over thinking it. Obviously stuff about 'it's a free car park' don't apply but the other usual paragraphs you see repeated in those examples apply even in a case where a person hasn't paid a P&D fee. By the way, Parking Eye signage is NEVER adequate, particularly at the entrance.

Here's an example I can think of where the OP didn't get a P&D ticket; post #60, notice how all the usual stuff is there strongly anyway, particularly focussing on non-prominent signage so the driver did not see it. And the driver was the OP's young son, and the OP had not seen the signs as they aren't local (like in your case):

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

If you base your appeal on that one, use the strong case law stuff and BPA CoP quotes, but do not copy it verbatim. 'Make it your own' as Louis Walsh would say!! Just don't use this line as it's not quite right now, no longer has the 10 degrees bit: ''The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”, if you read the BPA Code of Practice Appendix B (download it from the BPA website) you'll find what it says now (quote it).

Julzed wrote: »

Lastly, should I submit my appeal online to POPLA or by mail?

Many many thanks to all those who have helped so many of us finding ourselves in this situation. :T

If they gave you a POPLA form (hard copy) then mail it.

If they gave you a code then do it online BUT IMPORTANT!!!! Do not copy and paste a very long appeal into the box as it will get chopped off short, even though you won't notice until you get the POPLA acknowledgement. The word-count will not fit a long appeal in the box. So you need to attach your finished appeal as a PDF by email, or post it (securely stapled together and with the POPLA number clearly written on every single page, with a covering note saying this is for an already-submitted appeal and can they match it up).



HTH, comes to something when a Seagulls fan helps a Pompey fan...thought you lot were going out of business!

Julzed

OK then, here is my first draft of the appeal to POPLA, any critique welcome as this law speak is still slightly going over my head! I followed the advice of the kind people who replied to thread, read the other threads and took a fair bit of the POPLA Appeal the Coupon-Mad directed me to ( thanks CM!)

POPLA appeal re Parking Eye ticket number xxxxxxxxxx

I am the registered keeper of the above car and did not see any clear signs on entry or near the car which would have communicated to a seated driver that the car park is pay and display 24 hours a day. Parking Eye have a duty - to make the terms so clear that they cannot be missed, Therefore it is not an appropriate car park to have merely a few small signs and no large sign with full terms at driver's window height. Any terms displayed on ticket machines would never seen by any driver who stays in the car (as I did) do not alter the contract which can only be offered by full terms & conditions displayed prominently at the entrance.

Because the signs fail to properly inform drivers of the full terms & conditions 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.

In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked often before. He said:
“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must have taken to have known of it and agreed with it.”

I believe 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.
The BPA Operational Requirements Section 18.2 states:
''Entrance signs must follow some minimum general principles and be in standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance.''
The BPA code of Code of Practice states under appendix B, entrance signage:

“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

The Capital height for Group 1 text must also be at minimum of 120mm in height as it is displayed in a service area on a motorway.

And the BPA Code of Practice regarding signage 'Contrast and illumination':
There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision.
I believe the signs and any core parking terms Parking Eye are relying upon were unclear in all respects. They need to show POPLA their evidence and signage map/photos which they might contend meet all the requirements I have listed above.

In addition, to suggest a breach of contract, Parking Eye needs to prove that the driver actually saw, read and accepted the terms, which they cannot do as it is clearly untrue. It seems that I and the POPLA adjudicator are being 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, rather than simply the nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly, is perverse and beyond credibility. The truth is that the driver did not see, understand nor accept the alleged terms. Parking Eye may claim that generic signage is displayed around the car park but this does not meet the BPA Code of Practice rules nor the requirements for consideration when forming an alleged contract. To comply with contract law and the BPA Code of Practice, I say that Parking Eye need clear signs with full terms and a means to make payment (i.e. a machine) specifically at the entrance to the car park if they wish to try to establish a contract requiring payment in exchange for a parking space here

Parking Eye has not provided me with any evidence that it is lawfully entitled to demand money from the driver, since they do not own nor have any interest or assignment of title of the land in question. I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. I would require POPLA to check whether Parking Eye have provided a full copy of the actual site agreement/contract with the landowner/occupier (not just a signed slip of paper saying it exists) and check whether that contract specifically enables them to pursue parking charges in the courts, and whether that contract is compliant with the requirements set out in the BPA Code of Practice.

There is no contract between Parking Eye and myself but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999:

Unfair Terms
5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.
''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."

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

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


Parking Eye are also on record from a letter to a third party which is in the public domain, as having stated in 2013 that all their charges are based on 'breach of contract'. I believe this is also the basis upon which Parking Eye have told the DVLA that they have had 'reasonable cause' to continuously obtain data by a permanent EDI link. It is also clear from the following wording of the Notice to Keeper that they are alleging breach of contract rather than requesting payment of an agreed charge: "By either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted, in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable." So they are clearly 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 or damages in this particular car park for this particular 'contravention'. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

Therefore, these 'charges' for an alleged 'breach' are in fact unlawful attempts at penalties, as was found in the case of Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011) and in the case with the same Operator, Parking Eye v Smith (Manchester County Court December 2011). Parking Eye will not be able to refute this fact - however many pages of evidence they may send to POPLA - and so this punitive charge is therefore unenforceable in law.

I respectfully request that this appeal be allowed.

Coupon-mad

That's a great first draft! :T

Don't forget to change this as the BPA CoP in Appendix B no longer says '10 degrees' as I said above; you need to Google BPA Code of Practice and look at appendix B for the current words on the CoP if the incident was 20th June or after (March 2013 version if 189th June or before).

So this line is not correct now, needs looking up on Appendix B of the BPA CoP and changing:
[STRIKE]“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.” [/STRIKE]

Also the first paragraph in two places makes it sound as though you were driving...you said 'I am the registered keeper of the above car and did not see any clear signs' and 'driver who stays in the car (as I did)'. If you meant that when you subsequently visited to check the signage, then you need to say so.

As it's a Motorway Service Area (MSA) I would also add a bit more in the way of hoops for PE to jump through, in your signage paragraphs add this:



This was a Motorway Services Area, specifically designed for drivers to rest. Oper­a­tors of Motorway Services Areas (MSAs) and their agents, must com­ply with the require­ments of Gov­ern­ment pol­icy. These provisions are reflected in the Traffic Signs Agreements into which they enter with the Highways Agency.

The High­ways Agency, on behalf of the Depart­ment for Trans­port (DfT), pub­lished a pol­icy on the pro­vi­sion of road­side facil­i­ties on its net­work. That pol­icy is 'DfT Circular 01/2008: Policy on Service Areas and other Roadside Facilities on Motorways and All-purpose Trunk Roads in England'.

This is still current policy and is linked here:

http://webarchive.nationalarchives.gov.uk/20111205181832/http://www.dft.gov.uk/pgr/roads/network/policy/roadfacilitiespolicy.pdf

''Signing within roadside facilities
100. All traffic signs and markings within roadside facilities should conform to the standards laid down in the TSRGD 2002 as amended or replaced from time to time.''

I require Parking Eye to show proof to the POPLA adjudicator that the DFT/Highways Agency has granted special authorisation for Parking Eye's 'traffic signs' in this particular MSA, to be exempt from this policy requirement. It will not be enough for Parking Eye to claim that their particular signs placed in this MSA are in Parking Eye's own opinion, not 'traffic signs' when clearly they can indeed be interpreted as such and - unlike other adverts and signs on site - are not intended to direct pedestrians.

Julzed

thanks so much coupon mad! :beer: ok, so now my POPLA appeal now reads like this:


POPLA appeal re Parking Eye ticket number xxxxxxxxxx

The driver is the registered keeper of the above car and did not see any clear signs on entry or near the car which would have communicated to a seated driver that the car park is pay and display 24 hours a day. Parking Eye have a duty - to make the terms so clear that they cannot be missed, Therefore it is not an appropriate car park to have merely a few small signs and no large sign with full terms at driver's window height. Any terms displayed on ticket machines would never seen by any driver who stays in the car (as the driver did) do not alter the contract which can only be offered by full terms & conditions displayed prominently at the entrance.

Because the signs fail to properly inform drivers of the full terms & conditions 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.

In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked often before. He said:
“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must have taken to have known of it and agreed with it.”

I believe 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.
The BPA Operational Requirements Section 18.2 states:
''Entrance signs must follow some minimum general principles and be in standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance.''
The BPA code of Code of Practice states under appendix B, entrance signage:

“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look away from the road ahead.”

The Capital height for Group 1 text must also be at minimum of 120mm in height as it is displayed in a service area on a motorway.

This was a Motorway Services Area, specifically designed for drivers to rest. Oper!a!tors of Motorway Services Areas (MSAs) and their agents, must com!ply with the require!ments of Gov!ern!ment pol!icy. These provisions are reflected in the Traffic Signs Agreements into which they enter with the Highways Agency.

The High!ways Agency, on behalf of the Depart!ment for Trans!port (DfT), pub!lished a pol!icy on the pro!vi!sion of road!side facil!i!ties on its net!work. That pol!icy is 'DfT Circular 01/2008: Policy on Service Areas and other Roadside Facilities on Motorways and All-purpose Trunk Roads in England'.


Signing within road side Facilities

100. All traffic signs and markings within roadside facilities should conform to the standards laid down in the TSRGD 2002 as amended or replaced from time to time.''

And the BPA Code of Practice regarding signage 'Contrast and illumination':
There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision.
I believe the signs and any core parking terms Parking Eye are relying upon were unclear in all respects. They need to show POPLA their evidence and signage map/photos which they might contend meet all the requirements I have listed above.

I require Parking Eye to show proof to the POPLA adjudicator that the DFT/Highways Agency has granted special authorisation for Parking Eye's 'traffic signs' in this particular MSA, to be exempt from this policy requirement. It will not be enough for Parking Eye to claim that their particular signs placed in this MSA are in Parking Eye's own opinion, not 'traffic signs' when clearly they can indeed be interpreted as such and - unlike other adverts and signs on site - are not intended to direct pedestrians.

In addition, to suggest a breach of contract, Parking Eye needs to prove that the driver actually saw, read and accepted the terms, which they cannot do as it is clearly untrue. It seems that I and the POPLA adjudicator are being 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, rather than simply the nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly, is perverse and beyond credibility. The truth is that the driver did not see, understand nor accept the alleged terms. Parking Eye may claim that generic signage is displayed around the car park but this does not meet the BPA Code of Practice rules nor the requirements for consideration when forming an alleged contract. To comply with contract law and the BPA Code of Practice, I say that Parking Eye need clear signs with full terms and a means to make payment (i.e. a machine) specifically at the entrance to the car park if they wish to try to establish a contract requiring payment in exchange for a parking space here

Parking Eye has not provided me with any evidence that it is lawfully entitled to demand money from the driver, since they do not own nor have any interest or assignment of title of the land in question. I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. I would require POPLA to check whether Parking Eye have provided a full copy of the actual site agreement/contract with the landowner/occupier (not just a signed slip of paper saying it exists) and check whether that contract specifically enables them to pursue parking charges in the courts, and whether that contract is compliant with the requirements set out in the BPA Code of Practice.

There is no contract between Parking Eye and myself but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999:

Unfair Terms
5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.
''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."

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

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


Parking Eye are also on record from a letter to a third party which is in the public domain, as having stated in 2013 that all their charges are based on 'breach of contract'. I believe this is also the basis upon which Parking Eye have told the DVLA that they have had 'reasonable cause' to continuously obtain data by a permanent EDI link. It is also clear from the following wording of the Notice to Keeper that they are alleging breach of contract rather than requesting payment of an agreed charge: "By either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted, in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable." So they are clearly 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 or damages in this particular car park for this particular 'contravention'. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

Therefore, these 'charges' for an alleged 'breach' are in fact unlawful attempts at penalties, as was found in the case of Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011) and in the case with the same Operator, Parking Eye v Smith (Manchester County Court December 2011). Parking Eye will not be able to refute this fact - however many pages of evidence they may send to POPLA - and so this punitive charge is therefore unenforceable in law.

I respectfully request that this appeal be allowed.