Parking Eye and Welcome Break (Keele) South

kurgon

Hi

Just after some advise

I parked in the Keele services and over-stayed - didn't know I couldn't.
I'm disabled and was tired so I took my time. I went in at 11.06 and left at 13.40. They charge after 2 hours

I've read through some posts and taken a letter:


Dear Sir or Madam

I am writing this letter regarding a Parking Charge Notice I received throughthe post on the 4th November 2013. I am the registered keeper of thevehicle XXXXXXXX and is regarding the reference number XXXXXXXXXXXXXX

I would like to appeal against this parking charge notice as there has been nofinancial loss incurred by your company, the business the car park services northe landowner. The driver has parked in a car park which has no parking feesand therefore finds the charge attributed to this notice excessive.

I am therefore addressing you to cancel this parking charge notice for thereasons stated above. If you disagree with the reasons stated, I would begrateful if you would send me a POPLA code so that this appeal can be pursuedthrough an independent appeals process

Yours Faithfully

|My main concern is stating that they don't charge as when I looked on the Welcome Break site they do state charges there after 2 hours.

I would welcome any advice available

Thanks.

Coupon-mad

The point of the appeal is to get a POPLA code, which is the golden ticket you want, so generally that sort of challenge is fine.

But you have also said:

I'm disabled and was tired so I took my time

And you are quite right to have taken a little more time to rest on a journey, because you are legally allowed a 'reasonable adjustment' under the Equality Act 2010. Add that into the appeal to PE but word it that 'the driver is disabled under the definition within the Equality Act 2010 and needed longer to rest and park on this journey than an able-bodied person would have needed {give a bit of detail if you like but keep it all in the third person about 'the driver} and send it online tomorrow.

Meanwhile also send a complaint to Welcome Break. But I have to say, don't send it to the Head Office or CEO because we can tell everyone here on the public forum that WELCOME BREAK are now USELESS at bothering to respond properly to a customer over this matter:

http://forums.pepipoo.com/index.php?showtopic=83766

I post as SRM on pepipoo and recently wrote a strong complaint to go to Welcome Break's CEO (knowing that in September they had cancelled 3 PCNs when they got complaints about PE because I had posted them on the Successful complaints sticky thread).

But they have, it seems, been 'got at' and warned off by their flippin' AGENT as you can see from that thread - SHAME on the CEO of Welcome Break to let the aggressive tail wag the dog! We do know that PE did warn off some clients telling them to leave their own customers to appeal to PE...how DARE THEY?! :mad:

However, there have been complaint successes by contacting the actual Manager of that WB site - so as well as a PE appeal, try a phone complaint to that WB. State that you are disabled and if WB allow an agent to discriminate like this (by not making a reasonable adjustment of time under the Equality Act 2010) then Welcome Break are liable for that disability law breach, because PE are their agent.

You don't need a Blue Badge to be disabled and needing extra parking/rest time of course, so don't let either party get away with spouting that rubbish.

Let us know how you get on and be ready to take advice if this has to go the POPLA. You will need certain wording to win at POPLA, as I have actually just linked on that pepipoo thread today, when posting as SRM. So revisit that thread again when you have to draft a POLA appeal - if this isn't cancelled sooner!

kurgon

Hi

Received my expected rejection letter today along with popla code.

They only responded to the issue regarding unfair charges. I also received a second letter quoting a great deal of case law backing this decision, including a statement that they have never been found against in relation to this issue.

I am confused as there are only 4 options to tick on the appeal letter and I don't feel any of them fit.

Guys_Dad

kurgon wrote: »

Hi

Received my expected rejection letter today along with popla code.

They only responded to the issue regarding unfair charges. I also received a second letter quoting a great deal of case law backing this decision, including a statement that they have never been found against in relation to this issue.

I am confused as there are only 4 options to tick on the appeal letter and I don't feel any of them fit.

Let me try to debunk this last bit of misleading information by quoting from the POPLA lead adjudicator's report.

Grounds of appeal
There are four grounds of appeal set out on the appeal form:
1. The vehicle was not improperly parked.
2. The parking charge (ticket) exceeded the appropriate amount.
3. The vehicle was stolen.
4. I am not liable for the parking charge.

An appellant should select the one that is most appropriate to their reasons for appealing. However, the grounds of appeal are neither exclusive nor mandatory.

They are, nevertheless, a useful guide for the motorist to direct their submissions but if an appellant indicates more than one ground, none at all or one that does not appear to relate to the reasons put forward, this will not in itself invalidate the appeal. The operator should address the points actually raised in the body of the appeal.

http://www.popla.org.uk/AnnualReport.htm

So, you go with the appeals we suggest that are already proven and linked on here.

Coupon-mad

kurgon wrote: »

I am confused as there are only 4 options to tick on the appeal letter and I don't feel any of them fit.

Read this and take off those blinkers!

http://parking-prankster.blogspot.co.uk/2013/05/secret-reasons-you-can-use-in-your.html

3 out of 4 boxes fit, so tick them and work on your full POPLA appeal. Just not the stolen car one...

Here is a draft POPLA appeal designed for Parking Eye at a MSA (Motorway Services Area) although if you shorten it, DO NOT LOSE ANY HEADINGS:

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

Did you say in your appeal to PE that 'the driver is disabled under the definition within the Equality Act 2010 and needed longer to rest and park on this journey than an able-bodied person would have needed'? And did they NOT respond to that bit at all? You can add that at the start then and point out to the POPLA assessor that the driver had a legal right to park for longer under the Act but PE have ignored this part of the appeal and sent a generic reply.

Show us a draft of what you cobble together. We want to help make it another winner.

kurgon

Hi

I have essentially just copied and pasted (hoping this is the best course).

Dear POPLA,

APPEAL RE: PARKING EYE

The driver received a parking charge penalty notice from Parking Eye on ……… Informing the driver overstayed in a car park by 40 minutes. I appealed to Parking Eye and the appeal was rejected on the grounds because the car park is a pay and display car park only.
I would like to make the following points –

Parking Eye declined to comment or respond to my point that the driver was a disabled driver, driving a disabled registered vehicle displaying a blue badge while parking, and the application of reasonable adjustment in order to allow the driver to complete a break.

The driver is not liable for the parking charge penalty and the vehicle was not improperly parked. As such, the parking charge penalty notice exceeds the appropriate amount. Parking Eye is requiring payment from the driver under Schedule 4 of the Protection of Freedoms Act 2012. The driver says they have not met all the conditions imposed by this Act and so there is no obligation or liability on them at all. Additionally 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.

By making free parking available to prospective customers the owners and/or management of Welcome Break are clearly giving such prospective customers permission to park there. However, because the car park is free, the driver gave nothing to them in return for permission to park i.e. no consideration passed from the driver to them (or to Parking Eye), and where there is no consideration there is no contract.


NO EVIDENCE OF PARKING TIME OR SUFFICIENT DETAIL OF CONTRAVENTION
A driver like myself cannot make an informed decision based on a couple of photos of a car driving in and out of the entrance area of a car park at different times and no clear explanation of the alleged 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, whether it stayed in the car park or left and then returned within the recorded timescale.
The postal 'ticket' fails to clarify the issue and so it is a nullity, since it fails to meet the requirements for a Notice to Keeper under the Protection of Freedoms Act 2012.
The wording from the Notice to Keeper quoted fails to specify precisely which term of the alleged contract was allegedly breached; the Notice therefore fails to comply with the Protection of Freedoms Act 2012, Schedule 4 Clause 9(2)(c) and no keeper liability can arise.



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 part21 (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.



CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE TICKETS
Parking Eye does not own the car park and I dispute that they have the authority to enter into contracts regarding the land or to pursue charges allegedly arising.
Parking Eye has also not provided 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). 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.



UNCLEAR & NON-COMPLIANT SIGNAGE FORMING NO CONTRACT WITH DRIVERS The signage failed to comply with the BPA Code of Practice Appendix B, and that entrance signage is not readable by the driver of a moving vehicle as he enters the land cannot bind that driver into a contract.

I believe the signs and any core parking terms Parking Eye are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. The Operator needs to show evidence and signage map/photos on this point - 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, do not alter the contract which must be shown in full at the entrance.

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 needs to prove that I 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 me to park in exchange for paying the extortionate fixed amount the Operator is now demanding.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility. This is not a fair ‘contract’ or a contract at all.

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. They may claim that generic signage is displayed around the car park on poles but this does not meet the requirements for consideration when forming the alleged contract.

Also, as this was a Motorway Services Area. Which is 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 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.

NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
Were a contract to exist (which is denied) there has been no loss to Parking Eye or the owners/managers of the service station arising from the alleged overstay; accordingly the charge sought is an unenforceable contractual penalty.
Should Parking Eye choose instead to claim that the charge is an agreed contractual charge (contrary to the wording in their notice) this fails on the grounds that (i) it is clearly punitive and intended as a deterrent, in that it only (allegedly) became payable upon the breach of other terms in the alleged contract (ii) no means of payment was available at the time the charge allegedly fell due and (iii) no VAT invoice was issued. Accordingly it is clearly a penalty and therefore unenforceable.
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' and this is also borne out by their letters to me. 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 in any 'loss' claimed.

‘’Parking Eye are suggesting that the driver has overstayed in the car park, but in any case any 'loss' could only be the amount of the payment due for 47 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). Also as this is a free car park the Operator receives no income except from ‘parking tickets’. Does Parking Eye seriously expect me and the POPLA adjudicator to believe that their operation runs in this car park at a permanent loss, only clawed back when people pay? This is clearly untrue and Parking Eye will not be able to show POPLA that it can possible be the case in their business model’’



UNLAWFUL PENALTY CHARGE
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket.

Parking Eye quoted a non-parking related court case from 2011 so I would like to quote more relevant and persuasive decisions.

I am aware from court rulings and previous POPLA decisions that the cost of running the business may not be included in these pre-estimate losses.

Guys_Dad

You have a pretty comprehensive appeal but do be careful that because of its length that the core points don't get swamped.

You should summarise the points at the beginning as a numbered list and then expand each one.

Also check out here to see if you have overlooked any https://forums.moneysavingexpert.com/discussion/4816165

Keep an eye out for Pj's notorious witness statements and that's why I mentioned them specifically.

Coupon-mad

An MSA car park is not pay and display, AFAIK? It's free for 2 hours so I don't understand the introductory wording.

Also note that you will need to go through your letter and remove the strange formatting errors caused by the copy/paste, like 'Gov¬ern¬ment pol¬icy.'!!

I would make this stronger and a point in its own right, all of this below:



BREACH OF THE BPA AND EQUALITY ACT CODES OF PRACTICE AND BREACH OF THE EQUALITY ACT 2010 - INDIRECT DISCRIMINATION
Parking Eye declined to comment or respond to my point that the driver was a disabled driver, driving a disabled registered vehicle displaying a blue badge while parking, and the application of 'reasonable adjustment' in order to allow the driver to complete a break. They know about the disability issue yet have continued to pursue this charge, so they are in breach of the Equality Act 2010 (harassment and indirect discrimination caused by a blanket policy of an arbitrary time limit).

They are also in breach of two Codes of Practice which means they also breach POFA 2012 by virtue of these failures:

The BPA Code of Practice:
16.5 If your landowner provides a concession that allows parking for disabled people, if a vehicle displays a valid Blue Badge you must not issue it with parking charge notices.

The EHRC Equality Act Code of Practice for Service Providers (became law in April 2011):
14.58 Indirect discrimination will be intentional where the defendant (or defender) knew that certain consequences would follow from their actions and they wanted those consequences to follow. A motive, for example, of promoting business efficiency, does not mean that the act of indirect discrimination is unintentional.
5.4 Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.
5.34 In a case involving disability if the service provider has not complied with its duty to make relevant reasonable adjustments, it will be difficult for the service provider to show that the treatment was proportionate.

I would remind the POPLA assessor that POPLA is also a 'service provider' to the public and has the same duties under the Equality Act 2010 and the EA Code of Practice, which the Chief Adjudicator will no doubt be familiar with (employees, including all POPLA assessors, also need to be trained in this law and fully compliant). I contend it would be discrimination by POPLA if you do not uphold this appeal in view of the disability/no reasonable adjustment situation. The Assessor in this case, having read all the facts, is acting in the full knowledge of my disability need, the lack of reasonable adjustment made, and knowing of the consequences that will cause further detriment and harassment for me if you do not cancel this charge.

kurgon

Thanks all

Will re-format and get in the post. I will update as / when I hear back from POPLA.

kurgon

Hi All - I Won! Thank you all so much


Considering carefully all the evidence before me, I find that, the parking charge sought is a sum by way of damages. I also find that the damages sought on this particular occasion do not amount to a genuine pre- estimate of loss or fall within commercial justification.


Accordingly, this appeal must be allowed.

trisontana

Well done. I have posted this on the POPLA decisions thread.