Parking Eye fine at Membury services, M4

Coupon-mad

From the NEWBIES sticky thread which I have just added a bit to:

POPLA Code Checker, courtesy of ParkingCowlboys.co.uk which shows you when your 28 day deadline began:

http://www.parkingcowboys.co.uk/popla-code-checker/

Click on these words: How to win at POPLA, includes clear adaptable examples!

And ParkingCowboys.co.uk have their own similar summary of How to win at POPLA:

http://www.parkingcowboys.co.uk/popla/

And read the latest POPLA decisions (do not start reading there at page 1 - read back from the most recent at the end, and learn!).

Absolutely_Fuming

Here is my draft POPLA appeal. I would be very grateful if some of you could find the time to check it over for me and suggest any improvements that could be made before I submit it. I have until January 28th to get it to POPLA.

I, as the registered keeper, received a parking charge penalty for allegedly overstaying in the Welcome Break Membury Services, M4, for 34 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. Signage
3. No contract with the Landowner
4. Accuracy of ANPR equipment

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 be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."

At the time of the alleged 34 minute overstay it was dark and the car park was only about ten percent full so there would have been no losses to Welcome Break at all as there were plenty of spaces for other customers to park. I contest that £100 is not a reasonable or genuine pre-estimate of loss.

Parking Eye has 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 only.

Parking Eye submits that that the pre-estimate of loss will depend on the losses to themselves and the landholder. They submit that this will vary on the time of the day, the day of the week and even upon the weather. Parking Eye submits that the losses incurred by them include, but are not restricted to:
Erection and maintenance of the site signage
Installation, monitoring and maintenance of the automatic number plate recognition (ANPR) systems
Employment of office based administrative staff
Membership and other fees required to manage the business effectively including those paid to the BPA, DVLA and ICO
General costs including stationery, postage etc.

A POPLA Assessor has stated in a recent adjudication, in which the appeal was successful, that these all appear to be general operational costs, and not losses consequential to the alleged breach. They are not contractual losses, but the day to day costs of running their business and which would have been incurred irrespective of any breach that may have occurred. Parking Eye has admitted in their response to my appeal to them that their estimate of cost in each case is actually £53, including operating costs. The letter also states that the 40% reduction for early payment within 14 days must be greater than or equal to £53 in order for them to operate as a business which indicates that their charges must include an element of profit. They also state that the full charge of £100 is only payable if a motorist ignores all Parking Eye correspondence or loses an appeal at POPLA, but this is quite untrue as in their original Parking Charge Notice they stated that the parking charge would be discounted to £60 if paid within 14 days of the date issued but after this date the full parking charge would be owed, i.e. it would be owed irrespective of making any appeal to either Parking Eye or POPLA.

It would, therefore, follow that these charges cannot be a true pre-estimate of loss and that they are punitive, have an element of profit included and are not allowed to be imposed by parking companies.

2. Signage

I believe the signs and any core parking terms that Parking Eye are relying upon were too high and too small for any driver in a moving vehicle to see, read or understand when driving into this car park in the dark. Upon entering this Motorway Services Area motorists are bombarded with a whole range or signs, adverts and directions all supplying far more information than can possibly be read and fully understood from a moving vehicle when all any driver is actually looking for are the directions for finding where to buy fuel or where the toilet facilities are and where they can get something to eat and drink. Parking Eye states that they have other signs displaying their terms at various locations throughout the car park. However, none of these is lit and there are many parts of the car park where it is quite possible to walk into the building and back to the vehicle without seeing a sign, especially in the dark.

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 moving car can see, read and understand them when deciding to drive in. I believe the signs failed to properly and clearly warn and 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 Parking Eye 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”.

Parking Eye needs to prove that the driver actually saw, read, understood and accepted the terms, which resulted in a conscious decision being made by the driver to park in exchange for paying the extortionate fixed amount Parking Eye is now demanding, rather than simply the nominal amount required for an overstay.

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 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 Motorway Service Area, to be exempt from this policy requirement. It will not be enough for Parking Eye to claim that their particular signs placed in this Motorway Service Area 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 require Parking Eye to provide evidence of date of erection of all signage and to prove that their signage complies with the standards laid down in the TSRGD 2002 and with BPA Code of Practice and BSI Standards.

As Parking Eye is arguing that 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.

3. 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 they have 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.

4. ANPR Accuracy

Parking Eye 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 Parking Eye to present records of 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 Parking Eye 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 them in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form Parking Eye was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and Parking Eye could not rebut the point.

So, in addition to showing their maintenance records, I require Parking Eye 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 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. 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 Parking Eye in this car park is just as unreliable as that in the Fox-Jones case and I request that Parking Eye provides proof to the contrary.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

Absolutely_Fuming

This has been created by copying and pasting from various successful POPLA appeals and adjudications so does it matter that it looks very similar to other appeals that have already been submitted?


I have also tried to simplify some of the language used in the original documents so I hope I haven't inadvertently altered to meaning too much in doing so. Any advice on this would be greatly appreciated too.

Hot_Bring

POPLA will read point 1, then stop and allow the appeal - looks good to me.

Coupon-mad

Looks good to go!

4consumerrights

It will win - but IMO I would list point 2 as

No contract with driver formed due to inadequate and non-compliant signage

Either add at start that no contract was formed due to this or at end of paragraph.


Edit
BTW - did you have a response from Welcome Break.
The direct line for Membury is Contact Phone: 01488 674360

and you can view details including reviews

http://www.motorwayservices.info/membury_services_m4




why not let https://www.parkingticketappeals.org.uk deal with your parking eye ANPR "fine" - really a parking charge. save time and stress of dealing with this yourself.

Absolutely_Fuming

4consumerrights wrote: »

It will win - but IMO I would list point 2 as

No contract with driver formed due to inadequate and non-compliant signage

Either add at start that no contract was formed due to this or at end of paragraph.

Edit
BTW - did you have a response from Welcome Break.
The direct line for Membury is Contact Phone: 01488 674360

Thanks, I like that as it gets straight to what I really want to say so I'll edit Point 2 accordingly.


I tried phoning Membury on that number a couple of times but it only gets me to a switchboard operator who always says that she can't put me through to the manager as "he doesn't have a direct line, so he'll have to phone you back", and of course he never does!

Redx

this one won , similar as regards ppc and WB

https://forums.moneysavingexpert.com/discussion/4811452

Absolutely_Fuming

Coupon-mad wrote: »

Looks good to go!

Do I need to send anything else to POPLA along with my appeal, such as correspondence from PE?

bod1467

If you mean the evidence pack - no, PE will provide that to POPLA. And unless you're relying on any of the PE correspondence as part of your POPLA appeal then you don't need to include those either.