Parking charge notice is GPEOL likely to be case for appeal?

Coupon-mad

Before I have a final look at your POPLA appeal (and I am thinking it needs an ANPR paragraph, and that the signage paragraph can be improved)...here are two cases won on 'no GPEOL' recently at this car park:

http://forums.pepipoo.com/index.php?showtopic=83621

http://forums.pepipoo.com/index.php?showtopic=85050

And you should win like this too!

The first guy, Salmon Fisher, dealt with the case with me by pm because LCP were reading the forum. I expect they are reading this one too - hello again LCP! Here's the rubbish they sent him at first because he wouldn't name the driver - and they sent a whole copy of the forum thread too, as some sort of threat!

http://i39.tinypic.com/5nlxsi.jpg

and thanks to Salmon Fisher, here are the signs which appear not to be lit so would not be seen in the dark, like when your car arrived:

http://i39.tinypic.com/2myde8l.jpg

I am not seeing anything which meets the 'ANPR signage' BPA rules about telling people how their data will be used, as per the ICO registration the PPC is signed up to follow. So I will give you an ANPR paragraph which will cover that aspect, shortly.

Coupon-mad

On LCP's website it talks about the type of leases they can offer to take on, for car parks:

''We can offer term leases or short term licences upon:

• FRI Leases.
• Percentage of Turnover Rent.
• Income/Profit Share.
• Short term Licence outside the L & T Acts.''

So I am also thinking you should have a paragraph insisting on seeing the actual terms of that lease with the landowner, as you suspect it may be one of their 'percentage of turnover' or 'income/profit share' arrangements which will prove the alleged pre-estimate of loss is not genuine, but hogwash. The car park PCN money is clearly revenue to them - nothing to do with any 'loss' - same as pretty much every firm in PPC World.

4consumerrights

+1 for coupon's last two posts.

LCP gave up their lease to you far too easily responding to the first appeal and which the link to different arrangements was given in #23 and copied by coupon above.

Your third paragraph regarding signage - needs to be completely re-worded and include as a bullet point no contract with driver on the day.

plus the ANPR - check out Guy Dad's core POPLA appeal thread for more info

Coupon-mad

I would like to appeal this PCN from LCP at Harlesden Plaza, on the following grounds:

1 Notice to Keeper - not properly given under POFA 2012. No keeper liability.
2 No Genuine Pre-estimate of Loss.
3 Leasehold Agreement not yet seen - 'revenue sharing' business model suggests profits not losses.
4 Unclear and unlit signage.
5 ANPR Accuracy and Compliance.


1. NOTICE TO KEEPER - NOT PROPERLY GIVEN UNDER POFA 2012
The Notice to Keeper (NTK) letter omits the required information if it were to establish 'keeper liability' under the POFA 2012. LCP have not included all the below required wording from paragraph 9, Schedule 4, of POFA 2012, namely: ''9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met. (2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made.''

In this case, the NTK has not been correctly 'given' under POFA2012 and due to the many omissions, it is a nullity. As the driver has not been identified for this parking event, LCP do not have the right party for this PCN since they have failed to establish 'keeper liability' which is fundamental to their case against me.


2 NO GENUINE PRE-ESTIMATE OF LOSS.
LCP has helped prove my point by effectively confirming that their £100 charge cannot possibly represent a genuine pre-estimate of any loss caused by the parking event, in several ways:
(a) They have provided a carefully-crafted calculation, ostensibly to show how the £100 figure is reached. Yet it is noticeably incorrect in places, e.g. the 'POPLA look-up fee' is shown as £3.50 (actual cost £2.50) and even more damning is the attempt to charge me an 'admin cost for subsequent appeals and appeals to POPLA' and the actual POPLA fee (which is wholly the liability of the AOS member/BPA Ltd and cannot be passed onto an appellant). The costs associated with the POPLA appeal are tax-deductible business costs, not losses flowing from the event.
(b) In their rejection letter with the POPLA code, LCP have varied their 'loss' claim massively, from £100 down to a 'bargain offer' of £30. LCP must explain in their evidence for POPLA, how a loss amount apparently flowing from a specific parking incident can suddenly be slashed, then leap back to £100.
(c) There appears to be a revenue sharing lease agreement based on 'turnover' or 'profits' (see point #3 below) which I believe will show the true nature of the PCNs.

The Department for Transport guidelines state 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. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."

In addition, the Office of Fair Trading information to the BPA about parking charges states that these are not automatically recoverable: ''The OFT expressed the view that a parking charge will not automatically be recoverable, simply because it is stated to be a parking charge. It cannot be used to create a loss where none exists.”.

I am aware from previous POPLA findings this same site that this Operator has not proved the above to be a genuine pre-estimate of loss. On 13/12/13 POPLA Assessor Sakib Chowdhury stated in a decision about the same issue at Harlesden Plaza, that ''The amount put forward that could amount to a genuine pre-estimate of loss, does not amount to a substantial proportion of even the reduced charge. Consequently, I must find that the Operator has failed to produce sufficient evidence to demonstrate that the parking charge is a genuine pre-estimate of loss.''


3 LEASEHOLD AGREEMENT - REVENUE SHARING - PROFITS NOT LOSSES.
LCP have informed me that they lease this site. However their own website outlines their business model for leasing car parks:
http://www.londoncarparks.co.uk/leases.php

This markets this arrangement as follows: 'Allow LCP to generate substantial income for your portfolio of car parking sites' and the business model includes:
Percentage of Turnover Rent.
Income/Profit Share

I require an unredacted copy of the extant lease agreement because it seems to me that there may well be a % revenue share at this site which would prove that each PCN is issued for 'revenue' for the contracting parties and that the alleged loss is not genuinely stated at all. I do not believe that a 'substantial income' is generated from the P&D money alone - I contend that the PCN income is also stated in the lease agreement as part of the 'profits' making up the turnover from this site.


4 UNCLEAR AND UNLIT SIGNAGE - NO CONTRACT MADE WITH THE DRIVER
The driver did not see any signs at all when entering this car park on a rainy, dark evening and therefore at that time had no idea about any restriction or terms. There was no reason to suspect it was not a free shoppers car park and I do not believe the car park was well-lit at all, despite LCP showing me old 2011 pictures of some lights on a pole (lights that were clearly not working in their 'evidence picture' despite it appearing to be dusk!). If they wish to communicate a pay and display regime, LCP need clear illuminated signs with the full terms and the means to make payment with a machine at the entrance (including the risk of a PCN prominently displayed in large font so this cannot be missed before parking).

LCP have sent me a printout of the alleged 'full car park terms and conditions' which their website says are 'available upon request' but there is no evidence that these full t&cs are on display on site for the driver to have seen and read.

There are no low-positioned, clear, illuminated signs on entry to this car park which would have communicated any terms of parking to a driver in the dark. So the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied. LCP failed to properly and clearly warn/inform the driver of the terms 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.

In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in:
“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”

LCP's photos of a pole-top light 'not working' in 2011 do nothing to prove the lighting is clear now and do not prove that the terms are prominently illuminated at the entrance or in the car park. In fact because their camera has taken pictures of the VRN in a pitch black area (with ANPR light trained only on the number plate, and the brake lights the only other visible detail) I believe their own photos prove how dark the car park must have been for the driver. And this is at the exact place (the entrance) where they are at pains to tell me that it is apparently 'well-lit'. I suggest those 'lights' above the cameras are to facilitate the ANPR system alone and it is clear from the NTK that the site was in fact shrouded in darkness, with no lights trained on the signs.


5. ANPR: ACCURACY & COMPLIANCE
I call into question the ANPR system accuracy and compliance, since this car park has no parking staff on site. So I require the Operator to present records which prove the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer and generally maintained to ensure the accuracy of the data. BPA CoP 21.2 and 21.3 make these documented checks a requirement.

The BPA Code of Practice also says:
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras.''

No signs at this car park tell drivers how the data captured by ANPR cameras will be used, so the system does not operate in a 'reasonable, consistent and transparent manner'. I contend LCP have failed to comply with the ICO terms of registration and are in breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when it is not the case). This Operator is put to strict proof to the contrary as they have not yet shown me a sign which covers this 'ANPR data use' requirement.

It is respectfully request that this appeal is upheld and the charge dismissed.

bigtoe99

@Coupon-mad
Thanks so much. Have sent you PM with link to all documents from first PPC appeal inc land registry doc.

Guys_Dad

The £100 charge was the amount that was their "loss" at the time they issued the NTK. They can not, therefore, have any costs subsequent to that date in their GPEOL Additional costs would normally be claimed separately.

If you had paid the £100 at the time, it would by their admission been an overcharge as they include post-NTK costs relating to POPLA.

Make that point.

Incidentally, I think you should try to cut out any padding in your appeal as it obscures your main points. It is far, far too wordy.