ParkingEye POPLA Appeal

Itsa_Bitsa

Hi helpful people - I'd be grateful if someone could have a look over this before I send anything off! Many thanks.


Dear Sir/Madam,

I write to you to appeal Parking Charge issued by ParkingEye on the following grounds:

1. Not a Genuine Pre-estimate of Loss
2. No Evidence of ParkingEye’s Proprietary Position
3. Unlawful Penalty Charge
4. Unfair Terms



1. Not a Genuine pre-estimate of loss

The ‘time in car park’ as stated on the PCN is said to be 2 hours and 37 minutes, with 2 hours of free parking. For this ParkingEye asks for payment of £100. A payment which far exceeds the cost to the landowner for the time the vehicle car was parked there. The charge cannot be construed as anything but a punitive penalty.

Following my appeal directly to ParkingEye, they did not address this issue - for to justify this charge I require ParkingEye to supply a full breakdown of the costs they have suffered as a result of the car being parked at the car park. This breakdown must add up to £100. Normal expenditure that ParkingEye incurs to carry on their business - their operational day-to-day running costs (e.g. provision of parking, parking enforcement, signage erection, salaries and office rent) must not be included in the breakdown; these are operational costs which ParkingEye would suffer irrespective of the car being parked at that car park. I refer POPLA to the case of Vehicle Control Services Ltd vs Mr R Ibbotson (16th May 2012) which found that general business costs cannot constitute a loss.

This £100 charge does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have happened, the cost of parking enforcement would still have been the same. This has been quoted by POPLA itself in adjudication. The amount of the “penalty” imposed is completely disproportionate to any alleged “loss” by ParkingEye. It is, therefore, punitive and contravenes the Unfair Contract Terms Act 1997. I contend there can be no loss shown whatsoever; the car park was by no means at capacity and no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance. As such, the charge that was levied is punitive and therefore void (i.e. unenforceable) against me.

I also refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC (EWCA Civ 186 [2013]). This case determined the actual nature of Private Parking Charges. It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The Court ruling was "...that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice. This provides a means of payment at the point of supply, and a means to account to HMRC for the VAT element of the charge. No VAT is itemised on this PCN. It must, therefore, be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.



No Evidence of ParkingEye’s Proprietary Position

In their correspondence with me, ParkingEye have failed to produce any evidence to show that they have any proprietary interest in the car park at Welcome Break Fleet (North). Nor have they provided any evidence that they are lawfully entitled to demand money from a driver or keeper. As it appears that they do not own the land, nor have any interest or assignment of title of the land in question, it is assumed that they are merely agents for the owner or legal occupier. I contend, therefore, that they do not have the necessary legal capacity to charge the driver of a vehicle for using the car park.

As previously requested I require that ParkingEye provide copy of any contracts giving them authority to issue legal proceedings as agent on behalf of the landholder - as well as providing the name and serviceable address of the landowner in order that I contact them directly in order to address any conflict with the information provided. A signed witness statement stating that someone has seen a contract is insufficient, as is a document which simply claims that such a contract of agreement exists.


3. Unlawful Penalty Charge

ParkingEye alleges a breach of contract. However, without any demonstrable loss or damage, it can only remain a fact that this 'charge' is an attempt to dress up an unlawful penalty to impersonate a parking ticket. I refer you to the decisions in the County Court case of Excel Parking Services v Hetherington-Jakeman (2008), OB Services v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012). On this basis, what ParkingEye considers a charge fails to comply with the CPUTR 2008, the UTCCR 1999, the Equality Act 2010 and basic contract law.

In the instance of no enforceable contract being in place, the most appropriate offence to have been committed would be that of civil trespass. If this is the case, the remedy would be to award damages to the rightful party. Given that ParkingEye do not actually own the car park, that there was no damage to the car park and that the car park was not full when the vehicle entered or left it is logical to conclude that there was no loss to ParkingEye as a result of these actions.


4. Unfair terms

The charge that was levied is an unfair term and is therefore not binding pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative list of terms regarded as unfair:

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".

Schedule 5(1) states that: "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"

Schedule 5(2) states: "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"."

It is also important to note that this list is by no means exhaustive.

Coupon-mad

That's very good; a suggested tweak of wording would be to change this:

''I require that ParkingEye provide copy of any contracts giving them authority to issue legal proceedings as agent on behalf of the landholder''

to this:

''I require that ParkingEye provide [STRIKE]copy of any contracts[/STRIKE] a copy of their contract with the landowner which gives [STRIKE]giving[/STRIKE] them authority to issue legal proceedings [STRIKE]as agent on behalf of the landholder[/STRIKE] in their own name as creditor. This is specifically a requirement of the BPA Code of Practice as regards landowner contracts, full compliance with which is, in turn, a prerequisite of the POFA 2012.''


And if you want more...there is more to include when it's an MSA (Motorway Service Area):

https://forums.moneysavingexpert.com/discussion/comment/62870462#Comment_62870462

...that one is very long but shows you not only the landowner contract point but also a lot more about signage (in a MSA all traffic signs have to comply with the TRSGD2002 - like Council signs - and these PE 'traffic signs' do not). If you copy & paste from that linked POPLA appeal then beware it might need re-formatting a bit, as it is shown there with some odd symbols among the words.

I favour the fuller POPLA appeal the better, since anything you raise sets them up for a fall if they cannot rebut it, and costs them lots of postage when they have to send you a copy of their 'evidence'!


HTH

Guys_Dad

Slight drafting - you have missed "2" from the second point heading. I would also put the headings in bold.

nimbo

Following my appeal directly to ParkingEye, they did not address this issue - for to justify this charge I require ParkingEye to supply a full breakdown of the costs they have suffered as a result of the car being parked at the car park. This breakdown must add up to £100. Normal expenditure that ParkingEye incurs to carry on their business - their operational day-to-day running costs (e.g. provision of parking, parking enforcement, signage erection, salaries and office rent) must not be included in the breakdown; these are operational costs which ParkingEye would suffer irrespective of the car being parked at that car park. I refer POPLA to the case of Vehicle Control Services Ltd vs Mr R Ibbotson (16th May 2012) which found that general business costs cannot constitute a loss.

You may wish to remove the For -

but apart from that woo hoo - looks good to me (although to be fair I'm not an expert).

Itsa_Bitsa

Thanks for all your help (: Looking forward to getting this sent! I've made all of the suggested changes and worked in coupon-mad's suggestion (thank you!), so here is that extra appeal point:

5. Signage Non-Compliant with Motorway Service Station Requirements

This was a Motorway Services Area. 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 Agreement 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'.

The policy states that “B19. At all types of site, where a charge is to be levied for parking beyond the mandatory two free hours, the charging regime must be clearly displayed
within both the parking areas and the amenity building.”

The compliance of the MSA with the above policy is disputed and I therefore require ParkingEye to prove that such clearly displayed signage exists within the amenity
building(s) at the car park in question. It is not enough to prove that such signage exists within the car park itself.

Furthermore the policy states “All signing of roadside facilities and signing arrangements within sites must comply with the current Traffic Signs Regulations and General Directions and any other guidance as may be issued from time to time by the Department for Transport or the Highways Agency. Approval must be sought from the
Highways Agency’s signs specialist for the use of all non prescribed signs.”

I require ParkingEye to show proof to the POPLA adjudicator that the DFT/Highways Agency has granted special authorisation for ParkingEye's traffic signs in this particular MSA to be exempt from this policy requirement. It will not be acceptable for Parking Eye to claim that these particular signs are in ParkingEye's own opinion not 'traffic signs' when these signs have not been erected or positioned to direct pedestrians but instead act to provide information to vehicle users who may never leave their vehicles.

Coupon-mad

Nice one, should work a treat IMHO!