Total Parking Solutions: two visits but they thought it's one long one

Guys_Dad

You wrote "I have no evidence to prove this which puts me at a disadvantage because it is the Operator who has the ability to prove or disprove my assertion and the Operator has a financial interest in the outcome of this adjudication".

Can you change this to "I have no access to the evidence.....".

It comes across better.

kamb1ng

Okay I've added the other points from Guys Dad's post. The only change I made is in the last point #5. I made minor changes from "the driver" to "I" and removed the last two paragraphs because I have admitted in my first appeal that I was the driver.

One final comment before I submit to POPLA is much appreciated.

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Dear POPLA Adjudicator

RE: POPLA code: XXXXXX

Vehicle Registration:XXXXXXX
Vehicle Make and Model: Honda FR-V
Vehicle Colour: Silver

PCN ref: XXXXXXX
Alleged Contravention Date: 26/10/2013
Date of notice: XXXXXXX 2013

On the above date, I was issued with a Penalty Charge Notice (PCN) for overstaying the parking limit at Cambridge Retail Park. The Operator, Total Parking Solutions, claimed that I stayed there for 321 minutes.

The truth is, on that day I made two visits to the retail park, each totalling less than 30 minutes:
1. My first visit was made around 9:10 when I went to Halfords to purchase lightbulbs for my car. I completed the purchase at 9.23, fitted the lightbulbs, and left the retail park at approximately 9:35.
2. My second visit was made around 14:00 when I returned some items at Dunelm Mill. I completed the return at 14:20 and left the retail park at approximately 14:25.

Between the two visits I took my daughter to her swimming lesson, met up with my friend, Mr A C, at a park, and had lunch at home with Mr C. With this appeal I have included Mr C's signed statement of witness supporting my claims.

I challenged this PCN based on the fault of the Operator's ANPR device used in the retail park due to the fact it only captured the entry of my first visit and exit of my second visit. I then received a rejection with regards to the alleged contravention. Attached to the rejection was the POPLA form and verification code.

There are a number of contradictory information in the evidence shown by the Operator so far:
1. In the PCN you can see that both the IN and OUT dates are date-stamped with 26/10/2013 14:35:00. Although the IN is then further stamped with 09:14.
2. The appeal rejection email from the Operator included more photos of my car. The IN photo in the email is the same photo used in the OUT photo on the PCN. This is very confusing and convinced me that either the Operator's ANPR system is faulty or the Operator's staff are not properly examining the evidence.

Therefore I would like to appeal this notice on the following grounds:
1. ANPR accuracy

I require the Operator to show evidence to rebut my point that I made two separate visits to the retail park, each totalling less than 30 minutes. I have no access to the evidence to prove this which puts me at a disadvantage because it is the Operator who has the ability to prove or disprove my assertion and the Operator has a financial interest in the outcome of this adjudication. Therefore I demand that the Operator supply the unaltered sequenced copy of images of all vehicle comings and goings at the Cambridge Retail Park between 9:20-9:55 (approximate OUT time of my first visit) and 13:50-14:25 (approximate IN time of my second visit) on 26/10/2013 to prove or disprove my assertion. It is critical that the images are in sequence to ensure that every single vehicle comings and goings are included without exception and that no image has been removed.

In addition to that, 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 ParkingEye 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.

2.The amount demanded is not a genuine pre-estimate of loss

The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowiing 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. 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.

3. 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 Operator to strict proof to provide evidence that there is planning consent to cover the current parking conditions and chargeable regime in this car park.

I note that the Operator has not been engaged by the landowner, but by a lessee or tenant of the land. I require proof from the actual landowner that their contract with the lessee/tenant gives authority for any form of parking restrictions or charges to be brought in. (There are VAT implications when a car park is a revenue generating business that may impact upon a landowner and that is why it needs to be established that they need to have granted permission in their lease.)

4. 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 Operator 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 Operator.

5. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the Operator and I.

Having visited the Cambridge Retail Park on many occasions, I believe the signs and any core parking terms that the Operator 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 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 me 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”.

With all this in mind, I request that this appeal be allowed.

Yours faithfully,
xxxxxxxxxxxxx

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Coupon-mad

Looks good to go.

Do those photos look altered or the time added later? Sounds very fishy and almost as if they've manually created the evidence?

kirkbyinfurnesslad_2

I agree looks a decent appeal that you can get sent of

kamb1ng

Coupon-mad wrote: »

Looks good to go.

Do those photos look altered or the time added later? Sounds very fishy and almost as if they've manually created the evidence?

Fishy indeed. Here's the evidence they sent in the original PCN:
http://i40.tinypic.com/2vj5web.jpg

The "OUT" photo they show is actually an "IN" photo. I've marked the questionable date stamp in red.

In their email response to reject my appeal, they use that same photo as an "IN" photo and another photo as an "OUT" photo.

Definitely a scam.

Coupon-mad

Definitely - you could beef up your point about these photos to POPLA and ask them to report this to the BPA as it seems the PPC has used an 'in' photo as an 'out' photo which to the layman would 'perhaps' be considered fraud. Use that word? I would lay it on thick for POPLA as they can refer shocking stuff like this to the BPA.

If they don't, then afterwards, send the details to the BPA and to David Dunford at the DVLA saying the PPC has obtained the data using doctored/wrong photos and with no reasonable cause (but that would be for later).

kamb1ng

Submitted to POPLA online!

Will update this thread once I hear back.

Many thanks again especially to Guys Dad and Coupon-mad for all your guidance and help.

kamb1ng

Just received the decision from POPLA: My appeal is allowed based on GPEOL.

Thank you so much to everyone especially Coupon-mad and Guys Dad for helping me. Justice has been served.

One thing to note, TPS sent me their response to POPLA and in that they included a printout of this thread. Yes, this exact thread. TPS wrote: "Having noticed a thread of correspondence relating to this case on an internet forum we can't help but feeling this case has no real merit and should not be treated as a genuine appeal. Most of the content posted on the POPLA appeal form was provided by a number of forum users."

POPLA's decision:

(Appellant)
-v-
Total Parking Solutions Ltd (Operator)


The Operator issued parking charge notice number CTxxxxxxx arising out of the presence at Cambridge Retail Park, on October xx 2013, of a vehicle with registration mark xxxxxxx.

The Appellant appealed against liability for the parking charge.

The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.

The Assessor’s reasons are as set out.

The Operator should now cancel the parking charge notice forthwith.

Reasons for the Assessor’s Determination

At xx:xx, on October xx 2013, a CCTV automatic number plate recognition (ANPR) system recorded the Appellant’s vehicle entering the Cambridge Retail Park.

The Operator’s case is that the Appellant breached the car parking conditions by exceeding the maximum stay time permitted at the site.

The Appellant made representations stating his case. The Appellant raised a number of points and one of them was that the amount determined was not a genuine pre-estimate of loss.

The Appellant has submitted that the parking charge does not reflect the Operator’s loss, and so is not enforceable. The Operator has not addressed this submission.

It appears to be the Appellant’s case that the parking charge represents a sum for specified damages, in other words compensation agreed in advance. Accordingly, the charge must represent a genuine pre-estimate of the loss caused by the alleged breach.

The Operator does not appear to dispute that the sum represents damages, and has not attempted to justify the charge as a genuine pre-estimate of loss.

Consequently, I have no evidence before me to refute the Appellant’s submission that the parking charge is unenforceable.

I need not decide any other issues.

Accordingly, the appeal is allowed.

Coupon-mad

TPS sent me their response to POPLA and in that they included a printout of this thread. Yes, this exact thread. TPS wrote: "Having noticed a thread of correspondence relating to this case on an internet forum we can't help but feeling this case has no real merit and should not be treated as a genuine appeal. Most of the content posted on the POPLA appeal form was provided by a number of forum users."

And are they suggesting that their template PCN and NTK letters were not checked by anyone else then?! Daft thing for them to suggest that, in their warped minds, you are not allowed to take advice when threatened with a fake parking ticket!

Can I just take this opportunity to say to TPS if they have another look here:

MWWAAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!!!!!

kirkbyinfurnesslad_2

Thats so funny, !!!!!! or parking terrorists as Helen Dolphin likes to call us