help with POPLA appeal

markstokeshughes80

my wife received a parking charge from parking eye.it is £40 if paid before then raises to £70.she parked in aldi car parked for 3 hours and 20mins when it had 2 hours free parking.we appeal as she had mitigating circumstances these were that she was 8 months pregrant and that she went into town to post letter and withdrawn sum money after doing this she suddenly felt faint and felt her blood pressure to drop this has happened to her throughout her pregrance and on midwife advice previously given to her when it has happen she phoned her dad who came to meet her and took her to his house were she was able rest get something eat and drink till she felt ok and she felt safe to drive she appealed and informed parking eye of this and said she felt these circumstances were enough to drop charge as if she was to return to car any earlier she felt ishe was unsafe to drive and she could possible cause injury or death to herself or public.she also told them that the fee is disproportionate and unreasonable according to the unfair terms in the Consumer Contract Regulations Parking Charges on Private Land. This must not exceed the cost to the landowner during the period the motorist is parked there and she felt there fee was unfair and excessive and it is not reasonable and in line with any losses the landowner would have occurred as there were still plenty of spaces when she returned and she believe this to be case throughout as it was not a weekend or within rush hour and with it being a free car park there has not been any actual loses and there were plenty of spaces for consumers to park and shop at the supermarket they sent letter rejecting appeal we was just wondering what to do should we just pay or do you think its worth going aldi to see what they say or taking it up with popla.what are chances of appeal if went to popla and what are chances of it going to court and chances of us winning if this happens please help really cant afford it with baby coming along.any help be great thanks

collingbone614

At this stage it is important to be clear.

In the rejection letter you received from ParkingEye Ltd, did it also contain a printed form for you to send to POPLA?

There will be a POPLA reference at the top of the letter.

Coupon-mad

markstokeshughes80 wrote: »

My wife received a parking charge from parking eye. It is £40 if paid before then raises to £70. She parked in aldi car parked for 3 hours and 20mins, when it had 2 hours free parking.

We appealed as she had mitigating circumstances; these were that she was 8 months pregrant and that she went into town to post a letter and withdraw some money. After doing this she suddenly felt faint and felt her blood pressure drop. This has happened to her throughout her pregnancy and on midwife's advice previously given to her when it has happened, she phoned her dad who came to meet her. He took her to his house were she was able rest get something eat and drink till she felt ok and she felt safe to drive.

She appealed and informed parking eye of this and said she felt these circumstances were enough to drop the charge, as if she was to return to car any earlier she felt she was unsafe to drive and she could possible cause injury or death to herself or public. She also told them that the fee is disproportionate and unreasonable according to the Unfair Terms in Consumer Contract Regulations [STRIKE]Parking Charges on Private Land.[/STRIKE] This must not exceed the cost to the landowner during the period the motorist is parked there and she felt their fee was unfair and excessive and it is not reasonable and in line with any losses the landowner would have occurred.

There were still plenty of spaces when she returned and she believed this to be case throughout as it was not a weekend or within rush hour. With it being a free car park, there has not been any actual losses and there were plenty of spaces for consumers to park and shop at the supermarket.

They sent a letter rejecting the appeal. We were just wondering what to do; should we just pay or do you think its worth going aldi to see what they say or taking it up with popla?

What are chances of appeal if went to popla and what are chances of it going to court and chances of us winning if this happens?

Please help...really cant afford it with baby coming along...any help would be great, thanks

Right, firstly, I have split your post into paragraphs as I assume you must have typed it on a phone or other device that doesn't create paragraphs. Couldn't read it otherwise! I have also put right your citation about the UTCCR which is not about 'private parking' as such; it's a general law about any consumer contracts.

Your chances of winning a POPLA appeal we help you to get right is currently running at 100% success rate since Easter!

If you win at POPLA the case is cancelled, and if this was a customer/retail car park, simply complain to the retailer (Store Manager or Retail Park Management) and it should be cancelled anyway of course.

As your wife was pregnant and slower to get about than normal, and was taken ill which caused the delay, then in your POPLA appeal you can add in stuff about the Equality Act 2010, as in this example POPLA appeal I wrote in post #5:

http://forums.moneysavingexpert.com/....php?t=4656155

and here's a thread with general links and advice about POPLA appeals, what to include (in addition to the Equality Act thing as shown in that first example):

https://forums.moneysavingexpert.com/discussion/comment/62180281#Comment_62180281

DO NOT RELY ON THE MITIGATING CIRCUMSTANCES ALONE OR YOU WILL LOSE THE POPLA APPEAL.

Let's see the draft appeal you come up with, when you are posting on a device which allows paragraphs! ONLY MUGS PAY.

markstokeshughes80

Thanks for info the letter did not give me a popla reference number it just said in order to cancel parking charge they would need valid evidence indicating i did not break the terms and conditions stipulated on the signage.
i am not debating thati broke the terms by overstaing 2 hours i was saying i had mitigating circumstances to why i over stayed.i have contacted them again simply saying if they dont see fit to drop charge give me a popla refrence number and would appeal to them.
Also on parking charge notice first sent it does not state it is for damages it is for breaking contract sent out on the signs but there is no vat ref num or no vat breakdown on there.
i am new to forum but had a look around on other post and am i right in thinking they have to add vat and if they dont they are breaking the law would this be something else i could put that would aid my appeal.thanks in advance for any help.

Coupon-mad

Forget the VAT issue because POPLA do NOT listen to it at all. And no it's not breaking the law, not important to you winning this appeal.

Stick with what you will learn from other threads which you need to read now (not searching for Parking Eye cases only) instead simply reading every new thread on page one and two of this forum, say, every other day while you await their next reply.

Here's one you would have found if you'd read the new threads today:

https://forums.moneysavingexpert.com/discussion/4711279

That person has written a strong appeal to a PPC against a ticket issued to a pregnant woman. She will probably get a POPLA code in the reply, because the appeal is well-worded and strong about the harassment, and mentions clearly, her intention to complain to Mothercare if the PPC do not cancel.

Let us know what happens when you complain to whoever owns/runs the car park (or Store Manager on site, particularly if it's a big shop that sells baby-related stuff where the pregnant driver was browsing recently and thinking of making a purchase...and is not minded never to return...!).

Let us know if you don't get a POPLA code from the PPC, and if you do then use the links I have already given you, to learn how to word a winning appeal.

NO MITIGATING CIRCUMSTANCES and NO VAT to be mentioned in a winning POPLA appeal!

markstokeshughes80

hi i have had my appeal to parking eye turned down so know going to appeal to popla i have drafted my appeal below(sorry its a bit long) and just wanted some help please.
is it any good?is there any bits you would leave out or any bits to add?any help be great thanks

Dear POPLA,

I'm writing this to appeal a charge sent to me by Parking Eye Limited
SUMMARY OF THE INCIDENT AND BREACHES OF THE BPA CODE OF PRACTICE

The situation was I was forced to overstay in aldi car park by 1 hour 20 minutes as I original went into town to go and post a letter and go to the bank to withdrawn cash to go to McDonalds with my daughter.

I was heavily pregnant at the time and I suddenly felt dizzy and felt my blood pressure drop this has happened throughout my pregnancy and on the advice from my midwife when it had previously happen I rang my father who lived near by who came to take me to his house were I could get something to eat and drink and rest until I felt fit to drive. I felt if I returned any earlier I would not be in a fit enough state to drive and I could possible cause a accident and serious injury or death to myself or public. I have attached a note of my midwife to confirm this.

When I received a postal ticket out of the blue I wrote and explained my genuine emergency, expecting Parking Eye to understand and cancel the charge. They refused but did not consider my appeal properly, which is a breach of the BPA Code of Practice. There reply stated

“ we are fully compliant with British parking association regulations on signage and confirm that there is adequate signage at this site that is visible, appropriately located, clear and legible, so the parking charge is fully enforceable.

in order for parking eye to cancel charge, we will need valid evidence indicating that you did not break the terms and conditions stipulated on signage”

Their reply completely ignored my situation and completely ignored my appeal.

They also failed to provide me with a POPLA Code when rejecting my appeal, which is another breach of the Code of Practice.

Upset about this, I then managed to send another letter explaining the situation again and also sated that I have been back to the site and the signs do not meet BPA’s regulations and the charge is punitive but they rejected this again. Once more they ignored my circumstances and appeal, saying again:

“we are writing to advise you that your recent appeal has been unsuccessful due to the fact that valid/sufficient evidence was not provided to show that the terms and conditions stipulated on the signage were not broken. We are fully compliant with British parking association regulations on signage, and confirm there is adequate signage at this site that is visible, appropriate located, clear and legible.


This appears to be a template rejection, finally offering standard options including a POPLA code (only when I appealed a second time).
I want you to cancel this charge for the following reasons.

1: There are multiple issues with Parking Eye’s on-site signage.

Firstly the signs in the car park don't comply with the regulations set out in the British Parking Association's Approved Operator Scheme Code of Practice. Parking Eye claim in their letter to me that they subscribe to these regulations. You can see that, as in paragraph 21.1, signage needs to inform a driver what their camera technology can be legitimately used for:

“You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. 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.”

However, as can be seen from the photo’s I've included, the signage does not tell drivers what they will use the data captured by ANPR cameras for. You can see that there's a small image of a camera but no evidence of anything which tells a driver what they will do with the data captured.

Also as in paragraph 18.3 signage needs to be placed near all parking bays.

“You 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.”

I have since been back to car park and there is a entrance sign but I did not notice this as I was concentrating on driving but there are not signs throughout the car park only spaced out around the outside perimeter and not in the middle of car park see attached photos to see many car parking spaces with no signs near. This does not meet BPA’s regulations standards.
2: Parking Eye’
s lack of legal capacity to enforce/issue Parking Charge Notices

I point out that, in their correspondence with me, Parking Eye haven't produced any evidence to demonstrate that they have the necessary legal capacity to charge the driver of a vehicle using the car park.

Accordingly, I require Parking Eye to produce a full copy of the actual contemporaneous, signed & dated contract with the landowner – one which states that they are entitled to pursue these matters through issuing PCNs and through the courts. Contracts are complicated things so I require that this is an actual copy and not simply a document which claims that such a contract or agreement exists.

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

There is no contract between Parking Eye and
I 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.

3:
Parking Eye have presented no evidence on whether the ANPR images are accurate

Parking Eye have failed to show me any evidence that the records and maintenance of these cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR). The Operator has shown no proof of contemporaneous checks and maintenance of these cameras (in the forum of dated records kept at this site and relating to around the time my vehicle was there) and so I contend these cameras are not compliant with section 21 of the Code.

　
4:Parking Eye's charge is disproportionately high and doesn't reflect an accurate depiction of loss

My point here is that that their charge is not a genuine pre-estimate of loss, as set out in paragraph 19 of the BPA's Code of Practice.


Given that Parking Eye have presented no evidence as to how their costs relate to the event in question, I suggest that the charge is disproportionate and accordingly not in line with Schedule 2(1)(e) of The Unfair Terms in Consumer Contracts Regulations 1999, nor as described in the BPA Code as above.

5: NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS

There was no parking charge levied, the car park is “free” for 2 hours. On the date of the claimed loss it was not a weekend or rush hour there were still plenty of spaces when I left my car and when I returned there were still spaces and I believe this to be case throughout so shoppers could still get into supermarket and there was no physical damage caused. There can have been no loss arising from my overstay. Neither can Parking Eye lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by POPLA itself in adjuration.

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.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.

6: UNLAWFUL PENALTY CHARGE

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact 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), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

The operator is either charging for losses or it is a penalty/fine.

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

7:
BREACH OF THE EQUALITY ACT 2010 (MATERNITY PROTECTION)
I wish to point out to POPLA that in ignoring my circumstances and continuing to harass me, this Operator has breached UK maternity protection law as covered in the Equality Act 2010. The maternity section of the Equality Act makes it unlawful to harass a pregnant lady (in or out of the workplace) for any reason connected to her condition.


My emergency was completely caused by my condition, at a very vulnerable, late stage of pregnancy


Operators - and indeed POPLA adjudicators - have to abide by UK laws, which take precedence over any 'contractual' terms & conditions (rendered null and void if the effect is to harass a pregnant lady).

I realise that POPLA cannot normally consider mitigating circumstances but in fact this 'charge' cannot be upheld by POPLA as the Operator breached the Equality Act as soon as they knew about my protected condition.

Guys_Dad

Parts of it good. others do you no good at all. On a touch screen tablet at present but will send suggestions tomorrow.

Crabman

Hi Mark,

I've merged your new thread with the one you started on 28 August 2013 so all the information can be kept in one place.

Coupon-mad

markstokeshughes80 wrote: »

Dear POPLA,

POPLA verification code xxxxxxxxxx

I'm writing this to appeal a charge sent to me by Parking Eye Limited.

SUMMARY OF THE INCIDENT AND BREACHES OF THE BPA CODE OF PRACTICE

[STRIKE]The situation was I was forced to overstay in aldi car park
by 1 hour 20 minutes as I original went into town to go and post a letter and go
to the bank to withdrawn cash to go to McDonalds with my daughter.[/STRIKE]

I was heavily pregnant at the time and I suddenly felt dizzy and felt my blood pressure drop. [STRIKE]this has happened throughout my pregnancy and on the advice from my midwife when [/STRIKE][STRIKE]
it had previously happen [/STRIKE]I rang my father who lived near by who came to take me to his house were I could get something to eat and drink and rest until I felt fit to drive. I felt if I returned any earlier I would not be in a fit enough state to drive. [STRIKE]and I could possible cause a accident and serious injury or death to myself or [/STRIKE][STRIKE]
public[/STRIKE]. I have attached a note of my midwife to confirm this.

When I received a postal ticket out of the blue I wrote and explained my genuine emergency, expecting Parking Eye to understand and cancel the charge. They refused but did not consider my appeal properly, which is a breach of the BPA Code of Practice. Their reply stated

“ we are fully compliant with British parking association regulations on signage and confirm that there is adequate signage at this site that is visible, appropriately located, clear and legible, so the parking charge is fully enforceable... in order for parking eye to cancel the charge, we will need valid evidence indicating that you did not break the terms and conditions stipulated on signage”

Their reply completely ignored my situation and completely ignored my appeal. They also failed to provide me with a POPLA Code when rejecting my appeal, which is another breach of the Code of Practice.

Upset about this, I then managed to send another letter explaining the situation again and also sated that I have been back to the site and the signs do not meet BPA’s regulations and the charge is punitive but they rejected this again. Once more they ignored my circumstances and appeal with a template rejection, finally offering standard options including a POPLA code (only when I appealed a second time).

,[STRIKE]saying again:
“we are writing to advise you that your recent appeal has
been unsuccessful due to the fact that valid/sufficient evidence was not
provided to show that the terms and conditions stipulated on the signage were
not broken. We are fully compliant with British
parking association regulations on signage, and confirm there is adequate
signage at this site that is visible, appropriate located, clear and
legible.
[/STRIKE]

I require POPLA to cancel this charge for the following reasons.

1: There are multiple issues with Parking Eye’s on-site signage.
Firstly the signs in the car park don't comply with the regulations set out in the British Parking Association's Approved Operator Scheme Code of Practice. [STRIKE]Parking Eye claim in their letter to me that they subscribe to these [/STRIKE][STRIKE]
regulations. You can see that, as [/STRIKE] In paragraph 21.1, signage needs to inform a driver what their camera technology can be legitimately used for:

“You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. 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.”

However, as can be seen from the photo’s I've included, the signage does not tell drivers what they will use the data captured by ANPR cameras for. You can see that there's a small image of a camera but no evidence of anything which tells a driver what they will do with the data captured.

Also as in paragraph 18.3 signage needs to be placed near all parking bays.

“You 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.”
[STRIKE]
I have since been back to car park and there is a entrance sign but I did not notice this as I was concentrating on driving but [/STRIKE]
There are not signs throughout the car park only spaced out around the outside perimeter and not in the middle of car park - see attached photos to see many car parking spaces with no signs near. This does not meet BPA’s regulations standards.

2: Parking Eye’s lack of legal capacity to enforce/issue Parking Charge Notices

[STRIKE]I point out that, in their correspondence with me, [/STRIKE]Parking Eye haven't produced any evidence to demonstrate that they have the necessary legal capacity to charge the driver of a vehicle using the car park and they are not the landowner.

Accordingly, I require Parking Eye to produce a full copy of the actual contemporaneous, signed & dated contract with the landowner – one which states that they are entitled to pursue these matters through issuing PCNs and through the courts. [STRIKE]Contracts are complicated things so[/STRIKE] I require that this is an actual copy and not simply a document which claims that such a contract or agreement exists.

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

3. Unfair Terms and no contract made with driver
There is no contract between Parking Eye and myselfbut 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.


4. Parking Eye have presented no evidence on whether the ANPR images are accurate
Parking Eye have failed to show me any evidence that the records and maintenance of these cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR). The Operator has shown no proof of contemporaneous checks and maintenance of these cameras (in the forum of dated records kept at this site and relating to around the time my vehicle was there) and so I contend these cameras are not compliant with section 21 of the Code.


5. No breach of contract & no genuine pre-estimate of loss
My point here is that that their charge is not a genuine pre-estimate of loss, as set out in paragraph 19 of the BPA's Code of Practice. Given that Parking Eye have presented no evidence as to how their costs relate to the event in question, I suggest that the charge is disproportionate and accordingly not in line with Schedule 2(1)(e) of The Unfair Terms in Consumer Contracts Regulations 1999, nor as described in the BPA Code as above.

There was no parking charge levied, the car park is “free” for 2 hours. On the date of the claimed loss it was not a weekend or rush hour there were still plenty of spaces when I left my car and when I returned there were still spaces and I believe this to be case throughout so shoppers could still get into supermarket and there was no physical damage caused. There can have been no loss arising from my overstay. Neither can Parking Eye lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by POPLA itself in adjudication.
[STRIKE]
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.
[/STRIKE]


6.Unlawful penalty
The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact 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), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

The operator is either charging for losses or it is a penalty/fine.

[STRIKE]The operator could state the letter as an invoice or request
for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt
to be deemed an official parking fine similar to what the Police and Council
Wardens issue.[/STRIKE]


8.Breach of the Equality Act 2010 (maternity & indirect sex discrimination)
I wish to point out to POPLA that in ignoring my circumstances and continuing to harass me, this Operator has breached UK maternity protection law as covered in the Equality Act 2010. The maternity section of the Equality Act makes it unlawful to harass a pregnant lady (in or out of the workplace) for any reason connected to her condition.

My emergency was completely caused by my condition, at a very vulnerable, late stage of pregnancy. Operators - and indeed POPLA adjudicators - have to abide by UK laws, which take precedence over any 'contractual' terms & conditions (rendered null and void if the effect is to harass a pregnant lady, which constitutes indirect sex discrimination).

I realise that POPLA cannot normally consider mitigating circumstances but in fact this 'charge' cannot be upheld by POPLA as the Operator breached the Equality Act as soon as they knew about my protected condition.

Wait and see what others say, I was just trying to weed out some wording that was not needed or repetition, as shown above.

markstokeshughes80

Thanks coupon mad and if you could do that guys dad that be great.any other suggestions by people is there anything else I should add that I've missed?

Was also just wondering what are chances of winning appeal and if was to lose would they take court action to get me to pay?

Guys_Dad

markstokeshughes80 wrote: »

Thanks coupon mad and if you could do that guys dad that be great.any other suggestions by people is there anything else I should add that I've missed?

Was also just wondering what are chances of winning appeal and if was to lose would they take court action to get me to pay?

Coupon has hit on the points I would have made. Telling the PPC that you made use of their landowner's park to shop elsewhere was a bit, well, silly, and she has removed it, thankfully.

The appeal should be successful with previous experience of similar points.