POPLA appeal - supporting evidence

Guys_Dad

You should expand the grace point by saying that you believe that you were in the grace period and ask them what their period is. Also that they have longer periods elsewhere.

parking_mad_4

Many thanks for all the advice.

I have now added a reference to VCA re the ANPR and expanded the grace period section. However, if I am claiming to be within a grace period would i need to include my parking voucher as proof that I paid and that my overstay was not unreasonable? Would this contradict my point in section 1 of my appeal?

Dear POPLA,

APPEAL RE: Parking Eye PCN number XXXXXXXX POPLA code XXXXXXXX
XXXXXXXX Car Park XXXXXXX, VEHICLE REG: XXXXXXXX

On the XXXXXXXXX Parking Eye issued a parking charge notice of £100 because vehicle XXXXXXX was allegedly recorded on the automatic number plate recognition system as having stayed at the XXXXXXX car park in XXXXXX for X hours X minutes. This appeal is on the grounds that I am not liable for the parking charge, the vehicle was not improperly parked and the 'parking charge' exceeds the appropriate amount.


Parking Eye is requiring payment from me as the Registered Keeper under Schedule 4 of the Protection of Freedoms Act 2012. I say they have not met all the conditions imposed by this Act and so there is no obligation or liability on me at all. In addition they have failed to show that this standard fixed charge in that car park is a genuine pre-estimate of loss, have 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.


1. NO EVIDENCE OF PARKING TIME OR SUFFICIENT DETAIL OF CONTRAVENTION

The Operator 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 Operator has not even given a clear explanation of the alleged contravention. Did the driver not purchase appropriate parking time or did the car remain in the car park for longer than permitted?

The postal parking charge notice fails to clarify the issue and so it fails to meet the requirements for a Notice to Keeper under the Protection of Freedoms Act 2012.



2. GRACE PERIODS - PART 13 OF THE BPA CODE OF PRACTICE
The Operator is in breach of part 13 of the BPA Code of Practice:
‘13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go’. ‘13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action’.

The Operator’s photographs show the vehicle entered the car park at XX:XX and left at XX:XX. The attached parking voucher proves the driver paid for X hours’ parking. The driver believes to have been within a reasonable grace period both at the start and end of the parking event. The Operator should confirm what they consider the length of this period to be.

3. ANPR REQUIREMENTS- PART 21 OF THE BPA CODE OF PRACTICE
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). I need POPLA to consider 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.
Furthermore, Councils must only use ANPR evidence gathered by camera data systems approved directly by the Vehicle Certification Agency. Does POPLA accept that the Operator’s camera meets evidential standards for private parking notices if it would not for civil parking offences?

4.CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE TICKETS
Parking Eye have also not provided me with 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. 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 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. In POPLA case reference 1771073004 POPLA ruled that a witness statement was not valid. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement regarding contract documents between the operator and the landowner the alleged contract is a document which the operator could produce (if it exists). If the operator does not produce the actual contract but tries to rely on a witness statement then POPLA should be consistent and rule any such statement invalid). Specifically, 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.

5. UNCLEAR & NON-COMPLIANT SIGNAGE FORMING NO CONTRACT WITH DRIVERS
I believe the signs and any core parking terms Parking Eye are relying upon were unclear in all respects. This Operator needs to show POPLA their evidence and signage map/photos specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance.
There are no low-positioned, clear signs on entry to this car park which would have communicated the terms & conditions of parking there to a seated driver in moving traffic. This is a breach of the BPA Code of Practice at Appendix B which sets out strict requirements for entrance signage, including ''The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead''.

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.

Parking Eye has a duty to make the terms so clear that they cannot be missed. To fail in this respect means that the elements of a contract have not been met. To suggest a breach of contract, Parking Eye also needs to show that the driver actually saw, read and accepted the terms. No driver would knowingly accept these terms to pay this charge. 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.

Parking Eye needs to prove that the driver actually saw, read and accepted the terms, which means that I 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, rather than simply the nominal amount presumably due in a machine on site.

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 be taken to have known of it and agreed with it.”

So in addition, because the signs fail to properly inform drivers of the full terms & conditions in a very prominent place 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.

Parking Eye does not provide signage of sufficient written text size or at a suitable height to be read from the vehicle at the entrance or at any location on the premises. I suggest Parking Eye need clear signs and means for a driver to read the full terms and to make payment with a machine 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.

6. NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
Parking Eye are 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'. In addition, I understand that Parking Eye have told the DVLA that they have had 'reasonable cause' to continuously obtain data by a permanent EDI link due to issuing tickets for 'breach of contract'.

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 in this particular car park for this particular 'contravention'. Operators cannot lawfully include their operational day-to-day running costs such as staff, signs, cameras, uniforms etc in any 'loss' claimed. It was found in the case of Vehicle Control Services Ltd vs Mr R Ibbotson (16th May 2012) that general business costs cannot constitute a loss.

It is not clear whether Parking Eye are suggesting that the driver did not purchase appropriate parking time or that the car remained in the car park for longer than permitted, but in either case any 'loss' could only be the amount of the payment due for 22 minutes parking, which would be a nominal amount, not the fixed standard charge on all their tickets at this car park. No matter what the contravention alleged I believe the ticket amount is always the same on this site which calls into question the basis for the charge.

In Parking Eye v Smith (Manchester County Court December 2011) the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.

7. UNFAIR TERMS AND AN UNENFORCEABLE PENALTY
I feel this charge is punitive and unfair, contravening the Unfair Contract Terms Act 1997. Furthermore, I believe Parking Eye is in breach of the Unfair Terms in Consumer Contracts Regulations 1999.

Schedule 2(1)(e) states: ‘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’.


Also, Regulation 5 states:
(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.’

Private parking tickets unrelated to any genuine loss are unenforceable penalties. Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an attempt at dressing up a penalty to impersonate a parking ticket, as was found in the case of Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011), in Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).

And from the Office of Fair Trading, Guidance re Unfair Contract Terms:
''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''



CONCLUSION

In considering the evidence in my appeal, I believe POPLA should order that this unjustified charge is cancelled.


Yours faithfully,

Coupon-mad

I see what you mean and wonder if it would be resolved by removing the rhetorical question 'Did the driver not purchase appropriate parking time or did the car remain in the car park for longer than permitted?'

spacey2012

You need to be coy, state that you believe you left on time, hence the challenge to the ANPR accuracy and timing.
But however notwithstanding if POPLA accepts the ANPR to be correct despite it not been of an acceptable evidential standard for civil parking and traffic enforcement would the alleged "contravention" not fall inside the grace period.
Nothing stop a parking company tampering and altering timings as they never have to produce RAW data to VCA standards.
The VCA standard requires the time code is written in to the CCTV data at source, Parking eyes is not IMO and uses a collaboration of software, non of which can produce a evidential standard that can not be tampered with.

Now POPLA refuses to accept photographic evidence to disprove "double dipping"
They say they are not of a time code evidential standard.
Yet parking eyes is ?

Draw the line through that one.

Popla wont listen, as it is mealy a kangaroo court that writes the parking scammers case for them, often out of thin air, they even encourage them to write fake statements.
However introducing it means, they know about it and have to ignore it and it is a damned good challenging to have at a court as it forms the entire foundation evidence they build the case on is based on this cobbled together ANPR system..

parking_mad_4

Many thanks once again.

I have removed the rhetorical question in section 1, Coupon Mad.

I have re-ordered section 2 & 3 so the ANPR challenge is first and grace period comes after.

The revised sections of the appeal are below. I will not attached the parking voucher when I send the appeal to POPLA.

Any further comments welcome.

1. NO EVIDENCE OF PARKING TIME OR SUFFICIENT DETAIL OF CONTRAVENTION

The Operator 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 Operator has not even given a clear explanation of the alleged contravention. The postal parking charge notice fails to clarify the issue and so it fails to meet the requirements for a Notice to Keeper under the Protection of Freedoms Act 2012.

2. ANPR REQUIREMENTS- PART 21 OF THE BPA CODE OF PRACTICE
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). I need POPLA to consider 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.
The Operator’s photographs show the vehicle entered the car park at XX:XX and left at XX:XX. The driver believes to have left on time and therefore challenges the accuracy of the cameras in use at this car park.
Furthermore, Councils must only use ANPR evidence gathered by camera data systems approved directly by the Vehicle Certification Agency. Does POPLA accept that the Operator’s camera meets evidential standards for private parking notices if it would not for civil parking offences?

3. GRACE PERIODS - PART 13 OF THE BPA CODE OF PRACTICE
In the unlikely event that the Operator can prove the ANPR camera in use at this car park complies with Part 21 of the BPA Code of Practice, in any event the Operator did not specify the reasonable period permitted for the driver to decide whether or not to stay nor to leave the land after the end of the contract prior to taking enforcement action and therefore the Operator is in breach of part 13 of the BPA Code of Practice:
‘13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go’. ‘13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action’.

The driver believes to have been within a reasonable grace period both at the start and end of the parking event.

Coupon-mad

Looks great to me.

parking_mad_4

POPLA appeal sent yesterday. Acknowledgement letter received today. Expected decision date - 6 December 2013.

GAJASA3

Good Luck. I am sending mine in tonight too for a similar issue to yours. Let me know how you got on

parking_mad_4

Certainly will

[Deleted User]

Hi

I overstayed in a met parking space in a macdonalds in south london by one hour.

Use this letter to appeal to met and they accepted it. No questions asked!

WELL DONE!!!!!!