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POPLA appeal
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maisiemoo2011
Posts: 7 Forumite
Hi,
I have just finished my appeal to POPLA. Can someone take a look and let me know if there are any amendments I should make.
Appeal RE Parking Eye
I, as the registered keeper received a parking charge penalty for allegedly overstaying in Membury Services for 46 minutes. My appeal was refused by Parking Eye because I had not provided sufficient evidence to show that the driver did not break the terms and conditions on the signage.
I am appealing this penalty on the following points.
1. The Charge is not a genuine pre-estimate of loss.
2. No contract with the Landowner
3. Signage
4. ANPR Accuracy
1. The Charge is not a genuine pre-estimate of loss.
The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:
"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not beset at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."
Considering the alleged 46 minute overstay was between the times of 22:40 and 23:30 at night I contest that £100 is not a reasonable or genuine pre-estimate of loss.
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. 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, erecting signage, wages, uniforms, office costs) 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.
Furthermore, I attach the letter I received from Parking Eye that admits that their estimate of cost in each case is actually £53, including operating costs, and this that the charge they are seeking to impose in my case has a considerable element of profit as well as operating costs incorporated. By their own admission, therefore, It can not, be a true pre-estimate of loss
2. No contract with the Landowner
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 the POPLA Adjudicator with documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier. 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. Please note that a 'Witness Statement' to the effect that a contract is in place between Parking Eye and the landowner will be insufficient to provide all the required information, and will therefore be unsatisfactory.
3. Signage
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. Parking Eye 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 on the ticket machines or on a ticket itself, 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 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, 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.
The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
Also, as this was a Motorway Services Area. Which is specifically designed for drivers to rest. 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 Agreements 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'.
''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.
I put Parking Eye to strict proof to provide evidence of date of erection of all signage and proof of compliance of that signage with the standards laid down in the TSRGD 2002 and with BPA Code of Practice and BSI Standards.
As Parking Eye are arguing the driver entered into a legal contract with them based ENTIRELY on signage. I put Parking Eye to strict proof to provide POPLA with an unredacted, contemporaneous copy of their evidence that each sign was illuminated for the purpose of 'after dark' reading and to provide mapping of the signage.
4. ANPR Accuracy
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
So, in addition to showing their maintenance records, I require the Operator in this case to show evidence to rebut this point: I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the Parking Eye system and I put this Operator to strict proof to the contrary.
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 could state the letter as an invoice or request for monies, but chooses to use the wording “CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.
I therefore respectfully request that my appeal is upheld and the charge dismissed.
Kind Regards
Many Thanks
I have just finished my appeal to POPLA. Can someone take a look and let me know if there are any amendments I should make.
Appeal RE Parking Eye
I, as the registered keeper received a parking charge penalty for allegedly overstaying in Membury Services for 46 minutes. My appeal was refused by Parking Eye because I had not provided sufficient evidence to show that the driver did not break the terms and conditions on the signage.
I am appealing this penalty on the following points.
1. The Charge is not a genuine pre-estimate of loss.
2. No contract with the Landowner
3. Signage
4. ANPR Accuracy
1. The Charge is not a genuine pre-estimate of loss.
The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:
"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not beset at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."
Considering the alleged 46 minute overstay was between the times of 22:40 and 23:30 at night I contest that £100 is not a reasonable or genuine pre-estimate of loss.
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. 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, erecting signage, wages, uniforms, office costs) 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.
Furthermore, I attach the letter I received from Parking Eye that admits that their estimate of cost in each case is actually £53, including operating costs, and this that the charge they are seeking to impose in my case has a considerable element of profit as well as operating costs incorporated. By their own admission, therefore, It can not, be a true pre-estimate of loss
2. No contract with the Landowner
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 the POPLA Adjudicator with documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier. 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. Please note that a 'Witness Statement' to the effect that a contract is in place between Parking Eye and the landowner will be insufficient to provide all the required information, and will therefore be unsatisfactory.
3. Signage
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. Parking Eye 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 on the ticket machines or on a ticket itself, 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 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, 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.
The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
Also, as this was a Motorway Services Area. Which is specifically designed for drivers to rest. 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 Agreements 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'.
''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.
I put Parking Eye to strict proof to provide evidence of date of erection of all signage and proof of compliance of that signage with the standards laid down in the TSRGD 2002 and with BPA Code of Practice and BSI Standards.
As Parking Eye are arguing the driver entered into a legal contract with them based ENTIRELY on signage. I put Parking Eye to strict proof to provide POPLA with an unredacted, contemporaneous copy of their evidence that each sign was illuminated for the purpose of 'after dark' reading and to provide mapping of the signage.
4. ANPR Accuracy
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
So, in addition to showing their maintenance records, I require the Operator in this case to show evidence to rebut this point: I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the Parking Eye system and I put this Operator to strict proof to the contrary.
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 could state the letter as an invoice or request for monies, but chooses to use the wording “CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.
I therefore respectfully request that my appeal is upheld and the charge dismissed.
Kind Regards
Many Thanks
0
Comments
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Looks good to me.0
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Opening paragraph should be a little more, well vague, and not mention the word penalty :
Something like "As the registered keeper I am appealing a PCN ( ref xxx ) issued by Parking Eye for the driver allegedly breaking the terms and conditions of parking at xxxxx on "date". I do not believe the Parking Eye charge is valid and so should be cancelled. I believe this for the following reasons : "0 -
Ok I've just changed the opening paragraph. Was the message about the signature for me?0
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maisiemoo2011 wrote: »Ok I've just changed the opening paragraph. Was the message about the signature for me?
No, that's the people running this site not liking the fact I mentioned Parking Eye in it.0 -
You write " Please note that a 'Witness Statement' to the effect that a contract is in place between Parking Eye and the landowner will be insufficient to provide all the required information, and will therefore be unsatisfactory."
We know these are rubbish, but it is up to POPLA to decide if they are satisfactory - unless you explain why they are not.
The reasons are that they are not accompanied by a letter from the principal on their letter heading confirming that the signatory has the authority, legal expertise to confirm the exact terms of the contract, actually works for the landowner (as that is what they are signing as).
See the Prankster's blog and make sure that you add the reasons why a signed witness statement without the above confirmed info is not acceptable.0 -
Ok, I've changed that paragraph. Will this be ok?
"Parking Eye must provide the POPLA Adjudicator with 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."0 -
Yes I say that's fine because it's one I wrote!PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Do you think my appeal is ok to send now with those amendments?0
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I must admit there has been a lot of copy and paste going on. I did try to write it in my own words but everything I read was much better and seemed to say exactly what I wanted to say!0
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Without a doubt, it's ready! Good research about MSA POPLA appeals.
Just be careful if you submit it online as it's too long (probably) for the appeal wording box wordcount, so you might be best to post it but make sure you download a POPLA form if you don't have a hard copy (it's on the BPA website I think). Then fill that in and tick all the boxes except 'stolen car' and staple your printed appeal to it, ensuring that the correct verification code and your name/car reg appears on the top of every numbered page.
Staple it together securely (not a paper clip nor just folding it into an envelope) as it's a busy office and paper can get shuffled if not secure.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0
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