Eurocarparks PCN

Bob_Morton

Before I post my own query I just wanted to say what a great subforum this is - I've been reading it over the past couple of days and am genuinely amazed by the generosity of time and knowledge of contributors.

My own problem is that my wife overstayed in a carpark by nearly two hours and as RK I got a letter from eurocarparks. Obviously I'm not going to pay but I wanted to check this would do as an initial soft appeal in order to get the POPLA code:

Dear Sir,

I am writing to you with reference to parking charge 11111111 issued to vehicle xxxxxx on xx/xx/2013.

I am appealing this parking charge notice as your charge is punitive and unenforceable. I require you either to cancel the charge or provide me with a POPLA code so that I can refer the matter to POPLA .

Yrs.


Despite my reading most of the threads here I am a little unclear as to the wording of this letter and how much detail I should put at this stage.

Any help most appreciated - thanks

Guys_Dad

You want a POPLA code and they may try to wriggle out of this one with that appeal.

You should dispute 2 things - their signs not complying with the BPA guidelines and their right of occupancy (they have no valid contract with landowner. Demand to see it and that it allows them to pursue motorists for money) You can add your appeal point as well, of course.

I also take it that the NtK arrived within the correct timescale and you live in England??

bod1467

Guys_Dad wrote: »

I also take it that the NtK arrived within the correct timescale and you live in England??

Or Wales.

If you live in Scotland or NI then there is no keeper liability anyway - the old advice of GIRFUY (aka Ignore) still applies there.

Bob_Morton

Thanks - it is in England and within time so no recourse there.

Does the below read better? (taken almost entirely from Guys Dad previous example but I'll change it a little so not word for word!)

As registered keeper I wish to appeal on the basis firstly that you do not have the authority of the landowner to levy these charges. I require you to supply me with a copy of the relevant sections of the contract that you are working under in order for me to check (a) the contract is, in fact, with the landowner whose details have been supplied to me by the council and (b) in order for me to check the limit of your authority to levy charges as some landowner contracts do not, in fact, grant that authority. If you are unwilling to provide me with this, then I require, in accordance with the BPA and POFA regulations, a POPLA code in order for me to take my appeal to POPLA.

Secondly, after checking thoroughly with your signage and the BPA guidelines, I believe that they are deficient. If you disagree and refuse this appeal this is a further reason why I require a POPLA code. I refer you to the POPLA web site for the required timescales for a response.

Thirdly, I am appealing this parking charge notice as your charge is punitive and unenforceable. If you disagree and refuse this appeal this is a further reason why I require a POPLA code.


Yrs

Guys_Dad

Bob_Morton wrote: »

Thanks - it is in England and within time so no recourse there.

Does the below read better? (taken almost entirely from Guys Dad previous example but I'll change it a little so not word for word!)

As registered keeper I wish to appeal on the basis firstly that you do not have the authority of the landowner to levy these charges. I require you to supply me with a copy of the relevant sections of the contract that you are working under in order for me to check (a) the contract is, in fact, with the landowner whose details have been supplied to me by the council and (b) in order for me to check the limit of your authority to levy charges as some landowner contracts do not, in fact, grant that authority. If you are unwilling to provide me with this, then I require, in accordance with the BPA and POFA regulations, a POPLA code in order for me to take my appeal to POPLA.

Secondly, after checking thoroughly with your signage and the BPA guidelines, I believe that they are deficient. If you disagree and refuse this appeal this is a further reason why I require a POPLA code. I refer you to the POPLA web site for the required timescales for a response.

Thirdly, I am appealing this parking charge notice as your charge is punitive and unenforceable and not a genuine pre-estimate of loss. If you disagree and refuse this appeal this is a further reason why I require a POPLA code.


Yrs

Very good. I suggest adding the bit in red so that they know that you are forum-aided for sure and they can then weigh up whether to "invest" £27 in a doomed POPLA appeal.

Bob_Morton

Thanks - will do and will keep the thread updated with progress.

Bob_Morton

I did get the letter back from EuroCarParks and to no surprise it was rejected however I got the POPLA number.

I think I'd like to put in Guys Dad's points more or less exactly if people think that's OK. I've amended point 3 to do as the first three hours were free.

With regards to GPEOL I have a photo of the sign however I can't see any mention of a breach of contract mentioned on it. It may be in the very tiny print at the bottom of the picture but it's unreadable.

However, in the rejection letter the final page starts:

"We consider the amount on the PCN as a reasonable charge for liquidated damages in respect of a breach of the parking contract and contend that it is not a "penalty" for a number of reasons."

It then goes on to list costs including wages, contributions, repairs and maintenance of Parking Payment and Enforcement Equipement, vehicle and mobile costs, a % of installation and maintenance of Site Signage amongst others which adds up to exactly £90.

With this in mind I'm thinking I need to amend Point 4 somewhat as they have already given me a list of expenses although most of them would still have been expenses without my car being there.

Do you think I should amend the start of Point 4 to "eurocarparks have written and contend that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance." and not mention the sign?

Finally, should I send the rejection letter from eurocarparks or will POPLA ask for a copy from eurocarparks themselves?

Thanks again for help - here is the appeal at the moment which I'll submit online this time:


I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.


1. Neither the parking company or their client has proved that they have planning consent to charge motorists for any alleged contravention.

2. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.

3. The signage at the car park was not compliant with the British Parking Association standards and here was no valid contract between the parking company and the driver.

4. The amount demanded is not a Genuine Pre-estimate of loss.

Here are the detailed appeal points.

1. No right to charge motorists for overstaying

Planning consent is required for car parks and have conditions that grant permission as the car park provides a service to the community. To bring in time limits, charges and ANPR cameras, planning consent is required for this variation. I have no evidence that planning consent was obtained for this change and I put the parking company to strict proof to provide evidence that there is planning consent to cover the current parking conditions and chargeable regime in this car park.


2. No valid contract with landowner

It is widely known that some contracts between landowner and parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require the parking company to produce a copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory
is, indeed, authorised to act on behalf of the landowner, has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company

3. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver

I believe the signs and any core parking terms that the parking company 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. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms.

4. The amount demanded is not a Genuine Pre-estimate of loss

In a letter from the parking company rejecting my appeal it is stated that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Therefore, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre.

The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated where all of these costs must represent a loss resulting from the alleged breach.

For example, were no breach to have occurred then the cost of parking enforcement (for example, a percentage of installation and maintenance of site signage, repair of Parking Payment among others mentioned by the parking company) would still have been the same and, therefore, may not be included.

It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.

This concludes my appeal.

Coupon-mad

''Do you think I should amend the start of Point 4 to "eurocarparks have written and contend that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance." and not mention the sign?''


Yep, good idea (although I expect their signs drop them in it too). And ECP should supply the rejection letter in their evidence (which you will be sent a copy of later on).

I would always add an ANPR paragraph where a PPC uses it, because I like to make them jump through hoops even though we know they'll lose on no GPEOL. A basic ANPR paragraph is here:

https://forums.moneysavingexpert.com/discussion/4798215

HTH

Bob_Morton

Thanks - I'll add that in too. I'm sure the signs incriminate them as well but not sure I should mention them on the off chance they don't. The photos they supplied aren't clear enough to read the fine print at the bottom.

Bob_Morton

Added a few amendments - if anyone could check my GPEOL case is correct, bearing in mind I have a list of expenses from ECP although they're fixed business costs, I'd be most grateful:





I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.


1. Neither Euro Car Parks or their client have proved that they have planning consent to charge motorists for any alleged contravention.

2. Euro Car Parks has no contract with the landowner that permits it to levy charges on motorists up to pursuit of these charges through the courts.

3. The signage at the car park was not compliant with the British Parking Association standards and there was no valid contract between Euro Car Parks and the driver.

4. ANPR Accuracy

4. The amount demanded is not a Genuine Pre-estimate of loss.

Here are the detailed appeal points.

1. No right to charge motorists for overstaying

Planning consent is required for car parks and have conditions that grant permission as the car park provides a service to the community. To bring in time limits, charges and ANPR cameras, planning consent is required for this variation. I have no evidence that planning consent was obtained for this change and I put Euro Car Parks to strict proof to provide evidence that there is planning consent to cover the current parking conditions and chargeable regime in this car park.


2. No valid contract with landowner

It is widely known that some contracts between landowner and parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require Euro Car Parks to produce a copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory
is, indeed, authorised to act on behalf of the landowner, has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of Euro Car Parks.

3. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver

I believe the signs and any core parking terms that Euro Car Parks are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. Euro Car Parks 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. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require Euro Car Parks to provide photographic evidence that proves otherwise.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

Euro Car Parks needs to prove that the driver actually saw, read and accepted the terms.

4. ANPR accuracy

Euro Car Parks are obliged to make sure the APNR equipment is in working order, as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice, version 3 of June 2013. I require Euro Car Parks to present records regarding the dates and times of when the cameras were checked, calibrated and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important as the charge is founded on two images purporting to show my vehicle entering and leaving at specific times. It is therefore critical that Euro Car Parks produces evidence in response to these points.

5. The amount demanded is not a Genuine Pre-estimate of loss

This car park is free and there is no provision for the purchasing of a ticket or any other means for paying for parking. There was no damage nor obstruction caused so there can be no loss arising from the incident. As Euro Car Parks charges the same lump sum for a 20 minute overstay as they would for 180 minutes, and the same fixed charge applies to any alleged contravention, it is obvious there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.
Euro Car Parks alleges that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance.
Therefore, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms.
Euro Car Parks submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location. The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated where all of these costs must represent a loss resulting from the alleged breach and does not include fixed business running costs.

For example, were no breach to have occurred then the cost of parking enforcement (for example, a percentage of installation and maintenance of site signage, repair of Parking Payment, necessary subscriptions, among others mentioned by Euro Car Parks) would still have been the same and, therefore, may not be included.

It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.





For the reasons stated above I therefore respectfully request that this appeal be allowed.

Umkomaas

GPEOL appeal point looks fine to me. You might just want to embellish it slightly by cross-referring to the BPA CoP paragraph 19.5 which makes clear to operators that to pursue under 'breach of contract' the charge must be GPEOL.