Help with POPLA appeal

bienvibel

Hello,
I'm new to the site, so please bear with me.

I wanted a little bit of help with a Popla appeal before sending it off.

I sent an appeal to Parking Eye for overstaying at a Morrison's car park. They have, of course refused it. One of my questions is, when you write to Popla, do you discuss the points that the operator failed to reply to or do you start your case again?
My appeal failed as apparently I failed to provide sufficient evident that I did not break the t&c's on the signage.
They said:
1. Parking Charge is reasonable and genuine pre-estimate of loss. A charge for contractual breach does not necessarily need to be a pre-estimate of loss to be enforceable in law.
2. The charge has a strong commercial justification and that there is ample case in law to show is not punitive and that they can provide evidence, although they do mention maintenance as part of the incurring costs.
3. They sent two pages of cases where they supposedly won, I guess as an intimidation...

They failed to provide a sample of the contract with the landowner and images of the car park entry point as requested.

So I guess my question is, how to approach the next step. Do I ignore their justifications and appeal on same grounds? Requesting the same proof.

Thanks

kirkbyinfurnesslad_2

this is what you need to read:

https://forums.moneysavingexpert.com/discussion/4816165

Coupon-mad

Or read 'How to win at POPLA' which is in the top sticky thread 'Newbies read this first!'

bienvibel

Hi,
I've noticed many people appealing on the grounds of:
• The charge is a penalty and not a genuine pre-estimate of loss.
but on the BPA there are two points that read:
19.5
If the parking charge that the driver is being asked to pay
is for a breach of contract or act of trespass, this charge
must be based on the genuine pre-estimate of loss that
you suffer. We would not expect this amount to be more
than £100. If the charge is more than this, operators must
be able to justify the amount in advance.
19.6
If your parking charge is based upon a contractually
agreed sum, that charge cannot be punitive or
unreasonable. If it is more than the recommended
amount in 19.5 and is not justified in advance, it could
lead to an investigation by The Office of Fair Trading.
The charge that I have is for £85, so how can this point be rebuked?
Thanks

Redx

the link to successful popla appeals you can read and research is in the NEWBIES sticky thread you were asked to read, specifically in post #3

martmonk

not sure what you are getting at - they are alledging a breach of the t's and c's (therefore contract) and as a result must prove a genuine pre-estimate of loss.

The £100 suggested figure is just that, a suggested maximum so your £85 is irellevant in this context.

Coupon-mad

bienvibel wrote: »

Hi,
I've noticed many people appealing on the grounds of:
• The charge is a penalty and not a genuine pre-estimate of loss.
but on the BPA ...{quote not relevant}
The charge that I have is for £85, so how can this point be rebuked?
Thanks

What on earth makes you think PE claim 'contractually agreed sums' when their signage and NTK letters talk about breach of contract?! Do we take it you haven't noticed the (well over 100) cases won at POPLA against ParkingEye on the basis of 'not a genuine pre-estimate of loss'...? Day in day out, never lost one yet?! Read the 'POPLA decisions' sticky thread from the latest post backwards for say, six pages from today backwards...you'll soon see!

bienvibel

First of all, thanks for all the comments and sorry if you find us newbies repeatedly making the same mistakes.

I have read through lots of appeals but have found compiling all the information pretty tricky (as english is not my first language).

I have therefore used the suggested template as a starting point and amended as necessary, as well as adding a point on the ANPR system.

I hope that it makes sense and that I haven't butchered it too much
thanks for reading.

"APPEAL RE: PPC Name CHARGE ******/******,
********* CAR PARK **/**/2014, VEHICLE REG: **** ***

I am the registered Keeper of the above vehicle and I am appealing against the above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered:


1. The amount demanded is not a Genuine Pre-estimate of loss.

2. The signage at the car park was not compliant with the BPA standards and there was no valid contract between the parking company and the driver.

3. There is a lack of Accuracy and Compliance with the BPA standards on the ANPR system used.

4. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.

5. Neither the parking company or their client has proved that they have planning consent to charge motorists for any alleged contravention.


Here are the detailed appeal points:

1. 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 from a breach of the parking terms.

Parking Eye submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location among a list of all their costs. In short, the damages sought on this particular occasion do not fall within commercial justification as the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable.

I require Parking Eye to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time.

Furthermore, I attach a link to a letter from Parking Eye, that admits that their estimate of cost in each case is actually £53, (including operating costs), and 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.

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.

The letter in question is here (link attached)

2. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver.

Following receipt of the charge, I have personally visited the site in question. I believe the signs and any core parking terms that the parking company are relying upon were 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. I believe the signs failed to properly and clearly warn/inform the driver of the terms and conditions 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.

Parking Eye 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.

3. ANPR Lack of Accuracy and Compliance

I believe the ANPR system used on this site is unreliable and unsynchronised, there was also lack of information about the use of data captured, therefore the sign is not compliant with the BPA Code of Practice section 21.

Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the POFA 2012 (keeper liability requires strict compliance), a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.

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 parking company 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 the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company.

5. 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 parking company 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 parking company 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.)


This concludes my appeal.

Coupon-mad

That's a great start! I would say replace the above oldish versions of the wording, re these points:

3. ANPR Lack of Accuracy and Compliance

4. No valid contract with landowner

5. No right to charge motorists for overstaying

With this instead (put all your headings in bold and keeping points 1 and 2 as they are):



3. ANPR - Lack of Accuracy and Compliance
Because this Operator is alleging an 'overstay', I call into question the ANPR system accuracy. 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 accurately, which creates an entirely flawed cause of action by ParkingEye.

So I require the Operator to present records which prove:

- how they can rebut my statement above (i.e. show how the system works so that there is no possibility of any timing error, inaccuracy or buffering delay).

- the Manufacturers' stated % reliability of the timing/time stamp relating to the exact ANPR system used here. I require the actual ANPR system manual or marketing 'user information' from the Manufacturer (not ParkingEye's own interpretation of accuracy).

- 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 maintenance and checking of ANPR systems, with documentary evidence being kept for inspection, is a BPA CoP strict requirement (21.3 quoted below) so the latest record must be available to show to POPLA. Without it the reliability of the system is still in question. 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.

- in what way the ANPR system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from 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. This is the same Operator, so I have every reason to believe their ANPR systems everywhere are similarly fatally flawed.

- the origins of the stated maximum parking time and any grace period, as ParkingEye could have plucked a 'maximum time limit' from the air to maximise income. ParkingEye are known to vary these time limits in Supermarket car parks suddenly and unilaterally, in flagrant disregard of any Planning Permission consent (e.g. at Aldi Portslade, see last point 5 below). So, I require that they prove that the time allowed is the same as that agreed by the local authority Planning Consent for this actual car park at the time of the parking event and that this time limit was agreed in writing in advance with their client and with the actual landowner. A witness statement saying as much will NOT be sufficient documentary evidence.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
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.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
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, and on keeping and sharing personal data such as vehicle registration marks.''

At this location, there are merely a couple of secret small cameras up high on a pole. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a 'reasonable, consistent and transparent' manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA CoP breach would also point to a failure to comply with the ICO terms of registration and a 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.

4. Contract with the landowner - not compliant with the BPA CoP and no legal standing.
ParkingEye do not own this car park and are acting merely as agents for the owner/occupier. ParkingEye have not provided the Appellant with any evidence that it is lawfully entitled to demand money from the driver, since they do not own nor have any interest or assignment of the title of the land in question. I do not believe ParkingEye has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract (as evidenced in the Higher Court findings in VCS vs HMRC 2012). I put ParkingEye to strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, specifically evidencing the ability of ParkingEye to pursue parking charges themselves, to the courts. ParkingEye must provide documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier (not just a signed 'witness statement' slip of paper saying it exists). The date of the parking contract must pre-date the parking event and all clauses and detail must be readable; so a redacted version would suggest 'hidden' relevant information and will not suffice. In ParkingEye v Somerfield Stores (a case adduced by the operator themselves) the contract showed that ParkingEye had limited 'authority' and were a mere site agent which could not pursue court action in their own name, despite their misleading and threatening letters to victims pretending that they could.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual unredacted contract document, then POPLA should be consistent and rule any such statement invalid.

Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against ParkingEye which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.

In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.

5. No right to charge motorists for overstaying
I have no evidence that Planning Consent was obtained/varied for this parking enforcement regime - including the cameras, all signs and the stated maximum shopping/parking time - which would allow the current operation. I put ParkingEye to strict proof to provide documentary evidence that there is Planning Consent to cover the current parking conditions, time limit and chargeable regime in this car park. ParkingEye have been known on more than one occasion to unilaterally reduce the maximum parking time to maximise their pursuit of victims, as in the case of Portslade Aldi where their client was fined by the Local Authority for making a change to the agreed parking time without agreement, and then on a later occasion, ordered to remove signage which was also put up by ParkingEye in flagrant disregard of the Planning Consent terms. I suggest the same may be the case here and the burden of proof otherwise now shifts to ParkingEye.

In addition, I believe that the parking company has not been engaged directly 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. I understand that ParkingEye have recently been stopped from operating at certain car parks when the landowner realised that a mere leaseholder shop had acted outwith their authority by allowing a parking contractor to operate on site. I suggest my case may well be the same.


It is fun to respond to PE's long waffle with better, winning waffle!
You may not be able to fit that in on the POPLA website into the box. If not, then post it 1st class to POPLA (get free proof of postage from the PO Counter) as long as your 28 days is not anywhere near up!

bienvibel

I'm planning on sending it by post, so will include the new copy you sent.
Thank you very much, will let you know what happens.

bienvibel

I have finally received the response from Popla. Here it is:

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

It is the Appellant’s case that the parking charge notice was issued
incorrectly.
The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.

Accordingly I have no option but to allow the appeal.


Thanks to everyone who took the time to reply to my post and guided me through the complicated jargon. For me it was a matter of principle that they shouldn't get away with it.