Parking Eye - Pay and Display

CraigHealdpoint

Hi everyone, I have now put together the first Draft of an appeal letter to POPLA, and would be very grateful for people's advice.

I have tried to adopt the shorter "Bullet Point" style, whilst still giving enough information for the POPLA Assessor to know what I am saying (and letting them know that there is more detail if required). Here it is:


POPLA Appeal Verification Code Ref: XXXXXXXXXX

Dear Sir/Madam,

As registered keeper of vehicle reg XXXX XXX, ParkingEye sent me a “Notice to Keeper” letter dated XX XXX 2014, and headed “Parking Charge Notice” (PCN ‑ (ParkingEye Ref XXXXXX). On receipt of that letter, I queried a number of issues with ParkingEye (in my letter dated XX XXX 2014), in response to which, ParkingEye sent me a “rejection” letter (dated XX XXX 2104), providing me with the above‑referenced POPLA Verification Code.

I contend that I am not liable for the parking charge claimed by ParkingEye and, as registered keeper, I wish to appeal to POPLA against the PCN on the following grounds:

1) I do not believe that ParkingEye has an enforceable contract with the landowner / landholder that permits them to levy penalty charges on motorists.

Despite my specific request for evidence of the Contract made between ParkingEye and the landowner / landholder, they have not demonstrated a proprietary interest in the land. I believe that this is because they have no legal possession which would give them any right to offer parking spaces, let alone allege a contract with third parties. I further believe that ParkingEye’s lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I believe there is no contract with the landowner / landholder that entitles them to levy any such charges and therefore ParkingEye has no authority to issue PCNs. In this respect, the burden of proof falls on ParkingEye. I expect ParkingEye should be required to prove conclusively and unequivocally that they are not in breach of Section 7 of the BPA Approved Operator Scheme Code of Practice (CoP). Any breach of the BPA CoP means that 'registered keeper liability' has not been established, since full compliance is a pre-requisite of POFA 2012. If ParkingEye intend to claim (and provide proof of) the validity of a Contract, then they should provide both POPLA and myself with a full un‑redacted copy of the same, so as to allow independent confirmation of this. Extracts or “witness statements” cannot be considered sufficient.

2) ParkingEye have not stated whether they consider the charge to relate to an alleged breach of contract (damages), or to an alleged contractually agreed sum. Although I raised this issue in correspondence with ParkingEye, they did not provide any of the requested details. I believe that in either case, they have failed to demonstrate the validity of the alleged charge.

If the charge relates to an alleged breach of contract (damages), then ParkingEye should be required to demonstrate that the charge is a Genuine Pre‑estimate of Loss, in accordance with Paragraph 19.5 of the BPA CoP. I believe that the charge far exceeds the cost to the landowner / landholder. For the charge to be justified, ParkingEye should be able (and required) to provide a full breakdown of the costs that have been suffered as a result of the car being parked at the car park for the alleged period (of XX minutes), and show that this sums to a total of £100.00. As you will be aware, normal expenditure the company incurs to carry on their business (for example, provision of parking, parking enforcement or signage erection) should not be included in the breakdown, as these operational costs would have been suffered irrespective of the alleged breach of contract.

If ParkingEye seek to claim that the charge relates to a contractually agreed sum, then I contend that the claimed amount should be considered punitive and unreasonable (Paragraph 19.6 of BPA CoP refers), and thus unenforceable under the Unfair Terms in Consumer Contracts Regulations 1999 (in particular, Schedule 2, with examples at Paragraphs 5(1) and 5(2)), and under the Consumer Protection From Unfair Trading Regulations 2008 (including Part 2 Paragraph 6(1)).

3) The signage at the car park is not compliant with the BPA CoP requirements in a number of instances, including positioning, size and clarity.

As registered keeper of the vehicle, upon receiving the PCN, I visited the car park concerned to inspect it and take photographs. As a result of these inspections, I do not believe that the notices comply with BPA CoP in a number of specific areas. In particular, the Signage does not comply with BPA CoP requirements in Section 18 and Appendix B in relation to the required clarity and readability of Entry signs, nor to the data policy requirements in Sections 21 and 30 and Appendix E regarding the use of ANPR technology. I believe that there are other areas where the signage is non‑compliant with the BPA CoP (in particular, Paragraphs 18.5 and 30.2), and can provide evidence of these, if required.

4) I informed ParkingEye that as registered keeper, I am not aware of this vehicle parking at the stated site on the stated date, time and duration, and requested them to provide certification and evidence to establish the veracity of their claim.

Again, ParkingEye have not provided any of the requested details, either to show that the vehicle did visit at the alleged times, or that it was parked there throughout the duration of the period alleged.

Please note that the above points simply represent a brief outline of the primary grounds for my appeal to POPLA. There are a number of points of detail to support each of the individual grounds. I can (and will) provide full details of these on request.

yours


CraigHealdpoint
(Registered Keeper)

Apart from general comments on the Draft itself, I would also like to hear people's thoughts on how best to submit it to POPLA. Should I post it, or use their on-line system?

Thanks for any help and advice (and thanks again for all of the help in getting this far - if people here were not so positive, I might have caved in and paid by now).

Coupon-mad

I think that's fine although you do not need your first (intro) and last paragraphs at all (POPLA won't ask for extra evidence, for example).

I like your paragraph about signage which also covers the data requirements for signage in para21 of the BPA CoP. Nice wording. You could add to it, 'As the signage is unclear, unlit and placed too high and omits 'ANPR data use' signage required by ParkingEye's ICO registration, then the signs have failed to inform the driver of all t&cs. As such, the signs have failed to create any contract and in any case there was no consideration nor agreement between the parties.' That way you draw the point back to contract law, specifically lack of contract with a driver (which can win at POPLA) and away from a BPA CoP matter (which on its own does not win at POPLA).

I would remove this as it isn't true (I know it comes from a previous template):

''Any breach of the BPA CoP means that 'registered keeper liability' has not been established, since full compliance is a pre-requisite of POFA 2012.''

PE are now throwing in the towel nice and early when they see a forum based POPLA appeal so I expect you will have won by the middle of March!

CraigHealdpoint

I will update my letter and send it in.

Should I post it, or use POPLA's online system?

Stroma

Use the online process , I believe they give you an auto response back so you know it's been received

CraigHealdpoint

All,

Having taken on board Coupon-mad's comments, I re-checked the Boards, and came across Parisdisneyfan's Thread "POPLA Appeal letter, could you check please". In Post #3, Guys Dad refers to a recent post on POPLA's own Website, where one of their Lead Adjudicators posted one of his own decisions, in order to clarify things.

Looking at this statement in full, I think that it effectively gives me (and probably many others) a silver bullet, as ParkingEye have used exactly the same arguments (and wording) as referred to in the Adjudicator's Paras 52 and 53, thus excluding any claim that their charge is a GPEOL. :beer:

In light of this, I have added some more discussion to my Paras 2 and 3, as highlighted below.

I contend that I am not liable for the parking charge claimed by ParkingEye and, as registered keeper, I wish to appeal to POPLA against the PCN on the following grounds:

1) I do not believe that ParkingEye has an enforceable contract with the landowner / landholder that permits them to levy penalty charges on motorists.

Despite my specific request for evidence of the Contract made between ParkingEye and the landowner / landholder, they have not demonstrated a proprietary interest in the land. I believe that this is because they have no legal possession which would give them any right to offer parking spaces, let alone allege a contract with third parties. I further believe that ParkingEye’s lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I believe there is no contract with the landowner / landholder that entitles them to levy any such charges and therefore ParkingEye has no authority to issue PCNs. In this respect, the burden of proof falls on ParkingEye. I expect ParkingEye should be required to prove conclusively and unequivocally that they are not in breach of Section 7 of the BPA Approved Operator Scheme Code of Practice (CoP). Any breach of the BPA CoP means that 'registered keeper liability' has not been established, since full compliance is a pre-requisite of POFA 2012. If ParkingEye intend to claim (and provide proof of) the validity of a Contract, then they should provide both POPLA and myself with a full un‑redacted copy of the same, so as to allow independent confirmation of this. Extracts or “witness statements” cannot be considered sufficient.

2) Even if it is found that ParkingEye has a legally enforceable contract with the landowner / landholder, ParkingEye have not stated whether they consider the charge to relate to an alleged breach of contract (damages), or to an alleged contractually agreed sum. Although I raised this issue in correspondence with ParkingEye, they did not provide any of the requested details, but simply presented a “generic” template response with a “scatter-gun” approach listing a number of issues that they claim support their assertion the charge is enforceable. I believe that in either case, they have failed to demonstrate the validity of the alleged charge.

If the charge relates to an alleged breach of contract (damages), then ParkingEye should be required to demonstrate that the charge is a Genuine Pre‑estimate of Loss, in accordance with Paragraph 19.5 of the BPA CoP. I believe that the charge far exceeds the cost to the landowner / landholder. For the charge to be justified, ParkingEye should be able (and required) to provide a full breakdown of the costs that have been suffered as a result of the car being parked at the car park for the alleged period (of 17 minutes). As you will be aware, normal expenditure the company incurs to carry on their business (for example, provision of parking, parking enforcement or signage erection) should not be included in the breakdown, as these operational costs would have been suffered irrespective of the alleged breach of contract. This issue was discussed explicitly by POPLA Lead Adjudicator HM Greenslade recently, in a decision which he placed on the POPLA Website on 28 January 2014. In this detailed judgement (which also covered many of the “scatter‑gun” claims made by ParkingEye), Mr Greenslade highlighted that many of the so‑called losses being claimed by the Operator in that case were in fact, general business costs (cf. Paragraphs 52 and 53), before finding that as a direct result of this the charge was inadmissible. I believe that ParkingEye’s scatter‑gun approach also includes such business costs, as a result of which, they have clearly shown that the proposed charge is not a Genuine Pre‑estimate of Loss, thus defeating their own argument.

If ParkingEye seek to claim that the charge relates to a contractually agreed sum, then I contend that the claimed amount should be considered punitive and unreasonable (Paragraph 19.6 of BPA CoP refers), and thus unenforceable under the Unfair Terms in Consumer Contracts Regulations 1999 (in particular, Schedule 2, with examples at Paragraphs 5(1) and 5(2)), and under the Consumer Protection From Unfair Trading Regulations 2008 (including Part 2 Paragraph 6(1)).

3) The signage at the car park is not compliant with the BPA CoP requirements in a number of instances, including positioning, size and clarity.

As registered keeper of the vehicle, upon receiving the PCN, I visited the car park concerned to inspect it and take photographs. As a result of these inspections, I do not believe that the notices comply with BPA CoP in a number of specific areas. In particular, the Signage does not comply with BPA CoP requirements in Section 18 and Appendix B in relation to the required clarity and readability of Entry signs, nor to the data policy requirements in Sections 21 and 30 and Appendix E regarding the use of ANPR technology. The signage is unclear, unlit and placed too high and dopes not clearly set out all of the 'ANPR data use' information required by ParkingEye's ICO registration, thus failing to inform the driver of all t&cs. As such, the signs have failed to create any contract and in any case there was no consideration nor agreement between the parties. I believe that there are other areas where the signage is non‑compliant with the BPA CoP (in particular, Paragraphs 18.5 and 30.2), and can provide evidence of these, if required.

4) I informed ParkingEye that as registered keeper, I am not aware of this vehicle parking at the stated site on the stated date, time and duration, and requested them to provide certification and evidence to establish the veracity of their claim.

Again, ParkingEye have not provided any of the requested details, either to show that the vehicle did visit at the alleged times, or that it was parked there throughout the duration of the period alleged.
Please note that the above points simply represent a brief outline of the primary grounds for my appeal to POPLA. There are a number of points of detail to support each of the individual grounds. I can (and will) provide full details of these on request."

(Changes in BOLD)

As I have said, I would be really grateful if experienced members could cast an eye over these changes.

Coupon-mad

Those changes are fine - PE will throw in the towel we suspect, without even letting POPLA decide.

CraigHealdpoint

Just a quick note to say that I have now submitted my appeal to POPLA (via their Website), and received a confirmation email.

All I have to do now is wait for POPLA to make their decision - How long do they usually take?

Redx

hi , its about 6 or 7 weeks normally

Guys_Dad

I am a great believer in helping the adjudicator reach the right decision by quoting the assessor's words from previous adjudications that have accepted the motorist's appeal.

Now adjudicators do not have to follow their compatriots' views, but are more likely to that courts and judges.

The important thing is to use a similar appeal as the winning one and then quote the wording from the adjudication giving due credit to the previous adjudicator(s) by name.