Parking Eye ticket Home Bargains

loulix45

UPDATE!

Had this letter through today from PE

Reference Parking Charge Notice xxxxxxxxxx

Dear/Sir Madam

Thank you for your correspondence in relation to the Parking Charge on xxth September 2013 at xx:xx at Home Bargains Pwllheli - New Road car park.

We are currently reviewing this matter and will contact you shortly.

Yours faithfully

I'm surprised at this as I thought they'd reject my soft appeal outright and issue me with a POPLA code. What are all you good peoples' thoughts on this? Has anybody else had the same letter?

Stroma

People do get this from them, just wait and see if they cancel

loulix45

My soft appeal has been rejected folks so I'm in the process of putting together an appeal letter to POPLA. It's making my head swim and I'm not at all sure I know what I'm doing but I've read loads of threads on both here and other forums so I'll give it a go and put it on here when I've done for you all to look at......and point out the mistakes!!

loulix45

Well here it is. I just hope I'm somewhere along the right lines here. Constructive criticism much appreciated! There is some text at the beginning of the letter, name, address, POPLA code etc

A. Alleged Infringement

The Respondent alleges that, on xx-xx-2013, the driver of a vehicle registration number xxxx xxx, of which I am the Registered Keeper, was parked in breach of the terms and conditions and as such a Parking Charge is due. A Notice to Keeper (NTK) with the identity xxxxxx/xxxxxx was received by the Keeper on xx/xx/2013 some 17 days after the event. Schedule 4 paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper. Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a Notice to Keeper. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver.

A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered either
1. (Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver; or
2. (Where no notice to driver has been served (e.g ANPR is used) Not later than 14 days after the vehicle was parked
A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

B. Protection of Freedoms Act 2012 (the Act)

In order for any parking company to pursue keeper liability under the Protection of Freedoms Act 2012 (the Act) that parking company must have met the conditions in the Act. The conditions are set out in the sub paragraphs of the paragraphs in Schedule 4 of the Act. ParkingEye Ltd uses ANPR for its enforcement, in which case the relevant conditions that it must meet are those in paragraph 9. That is to say, the whole of paragraph 9 as is evident from its introduction which reads “(2) The Notice must…specify…inform…..describe…state that …warn…identify”. All of which are mandatory requirements.
The Respondent included in its Notice a statement that it was the “Creditor” as required by paragraph (9)(2)(h) of Schedule 4 of the Act. Whilst they have named themselves as the Creditor they have provided nothing to legally substantiate that claim.
It is also known that in recent appeals considered by POPLA, the Respondent has failed to provide any evidence that it is the “creditor” entitled to recover
monies from a driver.

B. Signage at site

The signage states that a parking charge notice would be issued for a ‘failure to comply’ with the terms of parking. This wording clearly indicates that the parking charge represents damages for a breach of the parking contract. Accordingly, the parking charge must be a genuine pre-estimate of loss. ParkingEye Ltd claims that its charges are in line with the BPA Ltd Code of Practice (CoP). Whilst the BPA Ltd CoP states that operator must justify in advance any parking charge over £100, it does not automatically follow that any charge which is £100 or under is justified. The respondent, ParkingEye Ltd, also claims that its charges have been held to be enforceable in other cases but has failed to produce any reasonable evidence to justify this particular parking charge. Losses caused by breaches of a parking contract may vary depending on the nature of the breach and the car park. The fact that a parking charge at a certain level is held not to be a penalty in one car park does not mean that the same sum is a pre-estimate of loss caused in every car park.

It is my assertion that the parking charge is punitive and an unenforceable penalty and the Respondent has not provided any evidence as to how and why this parking charge is a genuine pre-estimate of loss. It is not sufficient to simply list the names of previous cases without applying them to this case.

C. Entering, Parking and Exiting for ANPR

The Respondent uses ANPR camera’s at the entrance/exit of the retail park. The cameras only record the time that a vehicle enters the car park and when it leaves, they do not record the actual parking event nor the point at which the contract to park is entered into. There are five separate actions involved here that relate to the parking event.
1. Driving into the car park. (Entry time recorded on ANPR).
2. Parking the car in an empty parking space.
3. Reading the terms and conditions of parking offered at the retail park.
4. Acceptance of those terms and conditions by remaining at the car park.
5. Driving out of the parking space.
6. Driving out of the retail park. (Exit time recorded on ANPR).

The BPA Ltd Code of Practice requires that parking operators can only rely on ANPR evidence if it does so in a reasonable, consistent and transparent manner. Thus the Respondent has failed to recognise that it takes time to get in, find a space, consider the terms and conditions and then eventually to leave.
The Respondent’s claim for a parking charge for an alleged overstay based solely of the entry and exit times recorded by ANPR cameras is therefore fatally flawed and cannot be relied upon, on a balance of probabilities, to prove its case.

D. No contractual authority

The Respondent has not provided me with any evidence that it is lawfully entitled to demand money from the driver. That is to say, that it has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, it is the properly appointed agent of the landowner or has been properly authorised by the landowner to recover unpaid parking charges from a driver.
Accordingly, the Respondent should be required to provide a copy (to both POPLA and myself) of;
1. Its contract with the owner of the land on which the car park is situated
2. Evidence of the land ownership of the party with whom the Respondent has contracted
3. A “Purchase Order” incorporating this car park into that contract in the event that that contract is a framework agreement within, say, the next fourteen days. In the alternative, if the Respondent is the owner of the land then it should evidence that ownership within the same time period. If the Respondent is unable or unwilling to do so, then it should not be permitted to offer any evidence in this appeal.
The Appellant reserves the right to provide further representations in this appeal upon considering the evidence that has been requested. It is submitted that without such evidence the Appellants’position is prejudiced by being unable to properly challenge the Respondents’ position. POPLA is operated by the London Councils under a contract it has with the BPA. As such it will be governed by the Human Rights Act, and in particular Article 6. That article requires that an Appellant must have a real opportunity to present his or her case or challenge the case against them. This will require access to a Respondents’ submissions, procedural equality, and generally requires access to evidence relied on by the other party.

E. The Appeal

The Respondent is in breach of Schedule 4 paragraphs 8(5) or 9(5), Protection of Freedoms Act 2012 which specify the time limits for serving a Notice to Keeper.

The Respondent is in breach of the statutory requirements of Schedule 4, Protection of Freedoms Act 2012 and therefore cannot recover the alleged parking charge from the Appellant, as the registered keeper, and I therefore have no liability for the parking charge.

The parking charge is punitive. It does not represent a genuine pre-estimate of liquidated damages and is therefore an unlawful penalty charge.

The Respondent has produced insufficient evidence that my car was parked in breach of the stated terms and conditions.
The Respondent does not have the necessary contractual authority from the landowner to pursue this parking charge.

I respectfully request that this appeal be allowed. In the event that POPLA is minded not to grant the appeal then, because the Respondent failed to provide any evidence of its entitlement to recover parking charges until this stage, it is requested that it be ordered that the Respondent be not allowed to recover any more than the originally claimed sum.

bod1467

You have two B items.

Rather (or as well as) than having a separate section for the appeal, I'd suggest putting the appeal points within each respective section.

I'm not sure I fully understand the last sentence.

loulix45

So I have, thank you! Not sure I understand it either tbh!

loulix45

Quick revision!

A. Alleged Infringement

The Respondent is in breach of Schedule 4 paragraphs 8(5) or 9(5), Protection of Freedoms Act 2012 which specify the time limits for serving a Notice to Keeper.

The Respondent alleges that, on xx-xx-2013, the driver of a vehicle registration number xxxx xxx, of which I am the Registered Keeper, was parked in breach of the terms and conditions and as such a Parking Charge is due. A Notice to Keeper (NTK) with the identity xxxxxx/xxxxxx was received by the Keeper on xx/xx/2013 some 17 days after the event. Schedule 4 paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper. Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a Notice to Keeper. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver.

A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered either
1. (Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver; or
2. (Where no notice to driver has been served (e.g ANPR is used) Not later than 14 days after the vehicle was parked
A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

B. Protection of Freedoms Act 2012 (the Act)

The Respondent is in breach of the statutory requirements of Schedule 4, Protection of Freedoms Act 2012 and therefore cannot recover the alleged parking charge from the Appellant, as the registered keeper, and I therefore have no liability for the parking charge.

In order for any parking company to pursue keeper liability under the Protection of Freedoms Act 2012 (the Act) that parking company must have met the conditions in the Act. The conditions are set out in the sub paragraphs of the paragraphs in Schedule 4 of the Act. ParkingEye Ltd uses ANPR for its enforcement, in which case the relevant conditions that it must meet are those in paragraph 9. That is to say, the whole of paragraph 9 as is evident from its introduction which reads “(2) The Notice must…specify…inform…..describe…state that …warn…identify”. All of which are mandatory requirements. The Respondent included in its Notice a statement that it was the “Creditor” as required by paragraph (9)(2)(h) of Schedule 4 of the Act. Whilst they have named themselves as the Creditor they have provided nothing to legally substantiate that claim. It is also known that in recent appeals considered by POPLA, the Respondent has failed to provide any evidence that it is the “creditor” entitled to recover monies from a driver.

C. Signage at site

The parking charge is punitive. It does not represent a genuine pre-estimate of liquidated damages and is therefore an unlawful penalty charge

The signage states that a parking charge notice would be issued for a ‘failure to comply’ with the terms of parking. This wording clearly indicates that the parking charge represents damages for a breach of the parking contract. Accordingly, the parking charge must be a genuine pre-estimate of loss. ParkingEye Ltd claims that its charges are in line with the BPA Ltd Code of Practice (CoP). Whilst the BPA Ltd CoP states that operator must justify in advance any parking charge over £100, it does not automatically follow that any charge which is £100 or under is justified. The respondent, ParkingEye Ltd, also claims that its charges have been held to be enforceable in other cases but has failed to produce any reasonable evidence to justify this particular parking charge. Losses caused by breaches of a parking contract may vary depending on the nature of the breach and the car park. The fact that a parking charge at a certain level is held not to be a penalty in one car park does not mean that the same sum is a pre-estimate of loss caused in every car park.

It is my assertion that the parking charge is punitive and an unenforceable penalty and the Respondent has not provided any evidence as to how and why this parking charge is a genuine pre-estimate of loss. It is not sufficient to simply list the names of previous cases without applying them to this case.

D. Entering, Parking and Exiting for ANPR

The Respondent has produced insufficient evidence that my car was parked in breach of the stated terms and conditions.

The Respondent uses ANPR camera’s at the entrance/exit of the retail park. The cameras only record the time that a vehicle enters the car park and when it leaves, they do not record the actual parking event nor the point at which the contract to park is entered into. There are five separate actions involved here that relate to the parking event.
1. Driving into the car park. (Entry time recorded on ANPR).
2. Parking the car in an empty parking space.
3. Reading the terms and conditions of parking offered at the retail park.
4. Acceptance of those terms and conditions by remaining at the car park.
5. Driving out of the parking space.
6. Driving out of the retail park. (Exit time recorded on ANPR).

The BPA Ltd Code of Practice requires that parking operators can only rely on ANPR evidence if it does so in a reasonable, consistent and transparent manner. Thus the Respondent has failed to recognise that it takes time to get in, find a space, consider the terms and conditions and then eventually to leave.
The Respondent’s claim for a parking charge for an alleged overstay based solely of the entry and exit times recorded by ANPR cameras is therefore fatally flawed and cannot be relied upon, on a balance of probabilities, to prove its case.

E. No contractual authority

The Respondent does not have the necessary contractual authority from the landowner to pursue this parking charge.

The Respondent has not provided me with any evidence that it is lawfully entitled to demand money from the driver. That is to say, that it has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, it is the properly appointed agent of the landowner or has been properly authorised by the landowner to recover unpaid parking charges from a driver.
Accordingly, the Respondent should be required to provide a copy (to both POPLA and myself) of;
1. Its contract with the owner of the land on which the car park is situated
2. Evidence of the land ownership of the party with whom the Respondent has contracted
3. A “Purchase Order” incorporating this car park into that contract in the event that that contract is a framework agreement within, say, the next fourteen days. In the alternative, if the Respondent is the owner of the land then it should evidence that ownership within the same time period. If the Respondent is unable or unwilling to do so, then it should not be permitted to offer any evidence in this appeal.
The Appellant reserves the right to provide further representations in this appeal upon considering the evidence that has been requested. It is submitted that without such evidence the Appellants’position is prejudiced by being unable to properly challenge the Respondents’ position. POPLA is operated by the London Councils under a contract it has with the BPA. As such it will be governed by the Human Rights Act, and in particular Article 6. That article requires that an Appellant must have a real opportunity to present his or her case or challenge the case against them. This will require access to a Respondents’ submissions, procedural equality, and generally requires access to evidence relied on by the other party.

F. The Appeal

The Respondent is in breach of Schedule 4 paragraphs 8(5) or 9(5), Protection of Freedoms Act 2012 which specify the time limits for serving a Notice to Keeper.

The Respondent is in breach of the statutory requirements of Schedule 4, Protection of Freedoms Act 2012 and therefore cannot recover the alleged parking charge from the Appellant, as the registered keeper, and I therefore have no liability for the parking charge.

The parking charge is punitive. It does not represent a genuine pre-estimate of liquidated damages and is therefore an unlawful penalty charge.

The Respondent has produced insufficient evidence that my car was parked in breach of the stated terms and conditions.

The Respondent does not have the necessary contractual authority from the landowner to pursue this parking charge.

I respectfully request that this appeal be allowed.

zzzLazyDaisy

It is a good start, but it reads like an adaptation of a POPLA decision, rather than a POPLA appeal.

You need to be much punchier on 'Genuine Pre-estimate of Loss' and 'No contract'. Those two points should come first.

Have a look around the forums for examples of how to set out a POPLA appeal using BOLD side headings and putting the PPC to strict proof.

There are loads of examples.

bod1467

In essence the structure should be ...

Appeal point 1
Justification for appeal point 1
Put appellant to strict proof to counter appeal point 1

Appeal point 2
Justification for appeal point 2
Put appellant to strict proof to counter appeal point 2

etc.

loulix45

I've taken onboard all your advice and had another go. How's this now looking???? My head is about to explode! I'm not very good at these things and have been in tears over it. Btw the points are all in bold but it doesn't show when I cut and paste.

I would like to appeal this notice on the following grounds

1 No breach of contract and no genuine pre-estimate of loss
2 Lack of contract
3 Unlawful Penalty Charge
4 Failure to comply with the Protection of Freedoms Act 2012, Schedule 4, paragraph 9.4
5 Entering, Parking and Exiting with ANPR


1. NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF COST
The parking charge of £85.00 is punitive and unreasonable. It does not represent a genuine pre-estimate of liquidated damages and is therefore an unlawful penalty charge.
The signage states that a parking charge notice would be issued for a ‘failure to comply’ with the terms of parking. This wording clearly indicates that the parking charge represents damages for a breach of the parking contract. Accordingly, the parking charge must be a genuine pre-estimate of loss. ParkingEye Ltd claims that its charges are in line with the BPA Ltd Code of Practice (CoP). Whilst the BPA Ltd CoP states:
“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. If it is more than the recommended amount in 19.5 and is not justified in advance, it could lead to an investigation by the Office of Fair Trading.”
The respondent, ParkingEye Ltd, also claims that its charges have been held to be enforceable in other cases but has failed to produce any reasonable evidence to justify this particular parking charge. Losses caused by breaches of a parking contract may vary depending on the nature of the breach and the car park. The fact that a parking charge at a certain level is held not to be a penalty in one car park does not mean that the same sum is a pre-estimate of loss caused in every car park. I require the Respondent to provide a detailed breakdown of how the amount of the charge was calculated. It is not sufficient to simply list the names of previous cases without applying them to this case. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimates of loss.

2. CONTRACT WITH LANDOWNER – NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCEMENT CHARGES
The Respondent does not have the necessary contractual authority from the landowner to pursue this parking charge.
The Respondent has not provided me with any evidence that it is lawfully entitled to demand money from the driver. That is to say, that it has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, it is the properly appointed agent of the landowner or has been properly authorised by the landowner to recover unpaid parking charges from a driver.
Accordingly, I put the Respondent to strict proof (to both POPLA and myself) that they provide a full copy of the actual contemporaneous, signed & dated contract with the landowner of the car park.

3. 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 “CONTRACTUAL PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

4. FAILURE TO COMPLY WITH THE PROTECTION OF FREEDOMS ACT 2012, SCHEDULE 4, PARAGRAPH 9.5
The Respondent is in breach of Schedule 4 paragraphs 8(5) or 9(5), Protection of Freedoms Act 2012 which specify the time limits for serving a Notice to Keeper.

The Respondent alleges that, on xx-xx-2013, the driver of a vehicle registration number xxxx xxx, of which I am the Registered Keeper, was parked in breach of the terms and conditions and as such a Parking Charge is due. A Notice to Keeper (NTK) with the identity xxxxxx/xxxxxx was received by the Keeper on xx/xx/2013 some 17 days after the event. Schedule 4, paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper. Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a Notice to Keeper. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver.

A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered either
1. (Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver; or
2. (Where no notice to driver has been served (e.g ANPR is used) Not later than 14 days after the vehicle was parked
A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
As the NtK is not compliant with POFA 2012, the operator cannot charge the keeper, only the driver. As the keeper of the vehicle, I decline, as is my right, to name the driver(s). As the operator has not named the driver or provided any proof who the driver is, they cannot pursue this charge.

5. ENTERING, PARKING AND EXITING WITH ANPR
The Respondent has produced insufficient evidence that my car was parked in breach of the stated terms and conditions.
The Respondent uses ANPR camera’s at the entrance/exit of the retail park. The cameras only record the time that a vehicle enters the car park and when it leaves, they do not record the actual parking event nor the point at which the contract to park is entered into. There are five separate actions involved here that relate to the parking event.
1. Driving into the car park. (Entry time recorded on ANPR).
2. Parking the car in an empty parking space.
3. Reading the terms and conditions of parking offered at the car park.
4. Acceptance of those terms and conditions by remaining at the car park.
5. Driving out of the parking space.
6. Driving out of the car park. (Exit time recorded on ANPR).
The BPA Ltd Code of Practice requires that parking operators can only rely on ANPR evidence if it does so in a reasonable, consistent and transparent manner. Thus the Respondent has failed to recognise that it takes time to get in, find a space, consider the terms and conditions and then eventually to leave.
The Respondent’s claim for a parking charge for an alleged overstay based solely of the entry and exit times recorded by ANPR cameras is therefore fatally flawed and cannot be relied upon, on a balance of probabilities, to prove its case.

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 basic contract law.

I respectfully request that this appeal be allowed.