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POPLA Appeal - Help please! :)
popularfurball
Posts: 165 Forumite
So I have been avidly reading the forums and am now at the POPLA appeal stage - and I would really appreciate and help/suggestions with the letter below.
Excel are bullying and thuggish in their tactics, it is horrendous :mad::mad:
POPLA Verification Code:
Vehicle Registration:
Parking Company:
PCN Ref:
Alleged Contravention Date and Time:
Date of Notice:
Parking Charge Amount:
Car Park:
Dear POPLA Assessor,
I'm the registered keeper of the vehicle above and I am appealing against the parking charge above, I believe I am not liable for the parking charge on the grounds stated below, I would ask that all points are taken into consideration.
1. Non genuine pre-estimate of loss
2. Unlawful penalty charge
3. Management of ANPR data
4. Management of ANPR systems
5. No contract between driver / Inadequate signage
6. Flawed contract with landowner / Authority to issue PCN's
7. Tresspass
1. Non genuine pre-estimate of loss
Excel parking have demanded £100.00 (reduced to £60.00 if paid within 14 days) and this is not a genuine pre-estimate of loss. An estimate of loss must be calculated based upon loss following 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 BPA code of practice states:
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.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.
Given that the duration of stay was recorded at 52 minutes with a free stay of 30 minutes, and the tariff set by the operator for a 1-2 hour stay is just £2.00, then the amount of the “penalty” imposed is highly disproportionate to any alleged “loss” by Excel Parking, and is therefore punitive, contravening the Unfair Contract Terms Act 1997. The charge cannot be construed as anything but a punitive penalty.
Further to this, at the time of the breach, the car park was largely empty due to the retail venues being about to close, therefore no other customers were prevented from using the car park and thus no loss in revenue from this aspect.
In response to the appeal, Excel did not address this issue, and has not stated why they feel a £100 charge is an appropriate pre-estimate of loss. I request Excel Parking to provide a full breakdown of how these costs are calculated, all these costs must represent a loss resulting from the alleged breach and the pre-estimate of loss must add up to the exact amount demanded of £60.00. Normal expenditure the company incurs to carry on their business (e.g. parking enforcement, erection of signs, rent and salaries) should not be included in the breakdown, as these operational costs would have been suffered irrespective of the car being parked at that car park.
Given that Excel Parking charge the same lump sum for a 10 minute overstay as they would for 360 minutes, and the same fixed charge applies to any alleged contravention (eg. Fly tipping which would requires significantly more expense to resolve), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.
The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.
It would therefore follow that this charge has a significant element of profit included by Excel Parking, which is not allowed to be imposed by parking companies and therefore it would be considered that this charge is punitive and a penalty.
2. Unlawful penalty charge
Since there is no demonstrable loss or damage yet a breach of contract as been alleged, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful penalty to impersonate a parking ticket. Excel Parking could state the letter as a invoice or request for monies, yet they choose to word it as a 'Charge Notice' in an attempt for it to be deemed as a official parking fine such as the ones issued by Police and local authorities.
This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011) and UKCPS v Murphy (April 2012) .
3. Management of ANPR Data
Section 21.1 of the BPA Code of Practice states:
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.
Excel fail to operate the system in a 'reasonable, consistent and transparent manner'. As Excel signs are firstly difficult to identify – due to a combination of location, small print and poor lighting, there is no feasible opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'.
Further to this, on returning to the car park, the signs actually state in small print that the ANPR images will be used for the “Purposes of customer service”. I fail to see what ANPR cameras add to the customer service (or lack of) provided by Excel Parking, but instead propose that they are being utilised as a method of parking control, though this is not clear from the signs. The Code of Practice states that the ANPR use must be transparent, and the purpose of ANPR in this facility is clearly not 'transparent'.
I also contend that the ANPR cameras are not 'managing, enforcing or controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all – the cameras simply register a vehicle at the entry and exit points with no regard to where the vehicle is, nor what it is doing in the time in between.
4. Management of the ANPR systems
Section 21.3 of the BPA Code of Practice states:
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. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.
I request Excel Parking to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is significant as the parking charge issued is founded entirety on 2 photos of my vehicle entering the car park and leaving the car park at specific times.
Recently ParkingEye v Fox-Jones on 8 Nov 2013 was dismissed from court as the ANPR evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
So, in addition to showing their maintenance records, I require Excel Parking to show evidence to refute the following assumption. I suggest that in the case of my vehicle being in this car park, a local camera took the image and a remote server added the time stamp.
As the two systems are linked by the internet, most probably WiFi link, which can introduce a time delay, and they do not have a "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. As their whole charge rests upon two timed photos, I put Excel Parking provide proof to the contrary.
5. No contract between driver/Inadequate signage
Following the receipt of the charge, I have personally visited the site in question, and the signage at this car park especially at the entrance is inadequate for numerous reasons.
a) The signs erected by, or on behalf of Excel Parking do not clearly state that the stay duration will be monitored based on entry and exit time from the car park
In this instance the driver initially entered the car park due to torrential rain and poor visibility as they considered it unsafe to proceed along their journey. This can be corroborated by the quality of the ANPR images on entering the car park. There are no other places nearby to stop as it is a busy central town location.
b) The signs erected by, or on behalf of Excel Parking are not clearly located nor presented
Appendix B Entrance signs of the BPA Code of Practice it states:
'Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective.'
There is a sign on entering the car park which is difficult to identify as it is a busy junction which requires driver concentration. Further to this, the remaining signs are either brief in detail referring to the “Terms and Conditions” but not explaining them or near to pay stations and the “Terms and Conditions” are in significantly smaller print which makes reading from a vehicle impossible, and on foot, difficult at best. Further to this, there is no lighting on the signs in the car park which makes them difficult to locate and then read.
c) The signs erected by, or on behalf of Excel Parking do not clearly state the requirements for tickets
The signs state that 'Tickets must be displayed at all times', and yet on the same sign it states that 'No tickets are required for stays under 30 minutes'. This is clearly misleading, and clearly both statements cannot be held to being true.
Due to the lack of clear signage the driver has been confused about any terms and conditions that may have been in place regarding the use of this car park and is absolutely unaware of forming any contract with Excel. Had sufficient signage been in place at this site then this whole situation could have been avoided.
The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA Assessor 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. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
6. Flawed contract with landowner/Authority to issue PCN's
The BPA code of practice contains the following:
7. Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.
Excel Parking are merely agents of the landowner or legal occupier and therefore are not the owners and do not hold a proprietary interest in this piece of land. In their notice and rejection letters Excel Parking have provided me with no evidence that they are lawfully entitled to demand money from a driver or keeper. I request that Excel Parking provide strict proof to POPLA the contract between the landowner and Excel Parking which states that they have the legal authorisation from the landowner to contract with drivers and to enforce charges in their own name as creditor in the courts for breach of contract.
7. Trespass
If there is no contract in place, then at most the keeper was guilty of a civil trespass. If this was the case, the keeper would be liable for any damages. Given that the keeper did no damage to the car park and the car park was not full when the car in question was parked or when it left, because the occupants were there as customers of the outlets and unable to drive due to inclement and dangerous road conditions, it is suggested that there was in fact, no loss at all.
This concludes my appeal, I respectfully request that my appeal be upheld and the charge be dismissed if Excel Parking fail to address and provide the necessary evidence as requested in the points highlighted above.
Yours faithfully,
Excel are bullying and thuggish in their tactics, it is horrendous :mad::mad:
POPLA Verification Code:
Vehicle Registration:
Parking Company:
PCN Ref:
Alleged Contravention Date and Time:
Date of Notice:
Parking Charge Amount:
Car Park:
Dear POPLA Assessor,
I'm the registered keeper of the vehicle above and I am appealing against the parking charge above, I believe I am not liable for the parking charge on the grounds stated below, I would ask that all points are taken into consideration.
1. Non genuine pre-estimate of loss
2. Unlawful penalty charge
3. Management of ANPR data
4. Management of ANPR systems
5. No contract between driver / Inadequate signage
6. Flawed contract with landowner / Authority to issue PCN's
7. Tresspass
1. Non genuine pre-estimate of loss
Excel parking have demanded £100.00 (reduced to £60.00 if paid within 14 days) and this is not a genuine pre-estimate of loss. An estimate of loss must be calculated based upon loss following 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 BPA code of practice states:
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.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.
Given that the duration of stay was recorded at 52 minutes with a free stay of 30 minutes, and the tariff set by the operator for a 1-2 hour stay is just £2.00, then the amount of the “penalty” imposed is highly disproportionate to any alleged “loss” by Excel Parking, and is therefore punitive, contravening the Unfair Contract Terms Act 1997. The charge cannot be construed as anything but a punitive penalty.
Further to this, at the time of the breach, the car park was largely empty due to the retail venues being about to close, therefore no other customers were prevented from using the car park and thus no loss in revenue from this aspect.
In response to the appeal, Excel did not address this issue, and has not stated why they feel a £100 charge is an appropriate pre-estimate of loss. I request Excel Parking to provide a full breakdown of how these costs are calculated, all these costs must represent a loss resulting from the alleged breach and the pre-estimate of loss must add up to the exact amount demanded of £60.00. Normal expenditure the company incurs to carry on their business (e.g. parking enforcement, erection of signs, rent and salaries) should not be included in the breakdown, as these operational costs would have been suffered irrespective of the car being parked at that car park.
Given that Excel Parking charge the same lump sum for a 10 minute overstay as they would for 360 minutes, and the same fixed charge applies to any alleged contravention (eg. Fly tipping which would requires significantly more expense to resolve), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.
The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.
It would therefore follow that this charge has a significant element of profit included by Excel Parking, which is not allowed to be imposed by parking companies and therefore it would be considered that this charge is punitive and a penalty.
2. Unlawful penalty charge
Since there is no demonstrable loss or damage yet a breach of contract as been alleged, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful penalty to impersonate a parking ticket. Excel Parking could state the letter as a invoice or request for monies, yet they choose to word it as a 'Charge Notice' in an attempt for it to be deemed as a official parking fine such as the ones issued by Police and local authorities.
This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011) and UKCPS v Murphy (April 2012) .
3. Management of ANPR Data
Section 21.1 of the BPA Code of Practice states:
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.
Excel fail to operate the system in a 'reasonable, consistent and transparent manner'. As Excel signs are firstly difficult to identify – due to a combination of location, small print and poor lighting, there is no feasible opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'.
Further to this, on returning to the car park, the signs actually state in small print that the ANPR images will be used for the “Purposes of customer service”. I fail to see what ANPR cameras add to the customer service (or lack of) provided by Excel Parking, but instead propose that they are being utilised as a method of parking control, though this is not clear from the signs. The Code of Practice states that the ANPR use must be transparent, and the purpose of ANPR in this facility is clearly not 'transparent'.
I also contend that the ANPR cameras are not 'managing, enforcing or controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all – the cameras simply register a vehicle at the entry and exit points with no regard to where the vehicle is, nor what it is doing in the time in between.
4. Management of the ANPR systems
Section 21.3 of the BPA Code of Practice states:
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. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.
I request Excel Parking to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is significant as the parking charge issued is founded entirety on 2 photos of my vehicle entering the car park and leaving the car park at specific times.
Recently ParkingEye v Fox-Jones on 8 Nov 2013 was dismissed from court as the ANPR evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.
So, in addition to showing their maintenance records, I require Excel Parking to show evidence to refute the following assumption. I suggest that in the case of my vehicle being in this car park, a local camera took the image and a remote server added the time stamp.
As the two systems are linked by the internet, most probably WiFi link, which can introduce a time delay, and they do not have a "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. As their whole charge rests upon two timed photos, I put Excel Parking provide proof to the contrary.
5. No contract between driver/Inadequate signage
Following the receipt of the charge, I have personally visited the site in question, and the signage at this car park especially at the entrance is inadequate for numerous reasons.
a) The signs erected by, or on behalf of Excel Parking do not clearly state that the stay duration will be monitored based on entry and exit time from the car park
In this instance the driver initially entered the car park due to torrential rain and poor visibility as they considered it unsafe to proceed along their journey. This can be corroborated by the quality of the ANPR images on entering the car park. There are no other places nearby to stop as it is a busy central town location.
b) The signs erected by, or on behalf of Excel Parking are not clearly located nor presented
Appendix B Entrance signs of the BPA Code of Practice it states:
'Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual. Dark-coloured areas do not need to be reflective.'
There is a sign on entering the car park which is difficult to identify as it is a busy junction which requires driver concentration. Further to this, the remaining signs are either brief in detail referring to the “Terms and Conditions” but not explaining them or near to pay stations and the “Terms and Conditions” are in significantly smaller print which makes reading from a vehicle impossible, and on foot, difficult at best. Further to this, there is no lighting on the signs in the car park which makes them difficult to locate and then read.
c) The signs erected by, or on behalf of Excel Parking do not clearly state the requirements for tickets
The signs state that 'Tickets must be displayed at all times', and yet on the same sign it states that 'No tickets are required for stays under 30 minutes'. This is clearly misleading, and clearly both statements cannot be held to being true.
Due to the lack of clear signage the driver has been confused about any terms and conditions that may have been in place regarding the use of this car park and is absolutely unaware of forming any contract with Excel. Had sufficient signage been in place at this site then this whole situation could have been avoided.
The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA Assessor 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. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
6. Flawed contract with landowner/Authority to issue PCN's
The BPA code of practice contains the following:
7. Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.
Excel Parking are merely agents of the landowner or legal occupier and therefore are not the owners and do not hold a proprietary interest in this piece of land. In their notice and rejection letters Excel Parking have provided me with no evidence that they are lawfully entitled to demand money from a driver or keeper. I request that Excel Parking provide strict proof to POPLA the contract between the landowner and Excel Parking which states that they have the legal authorisation from the landowner to contract with drivers and to enforce charges in their own name as creditor in the courts for breach of contract.
7. Trespass
If there is no contract in place, then at most the keeper was guilty of a civil trespass. If this was the case, the keeper would be liable for any damages. Given that the keeper did no damage to the car park and the car park was not full when the car in question was parked or when it left, because the occupants were there as customers of the outlets and unable to drive due to inclement and dangerous road conditions, it is suggested that there was in fact, no loss at all.
This concludes my appeal, I respectfully request that my appeal be upheld and the charge be dismissed if Excel Parking fail to address and provide the necessary evidence as requested in the points highlighted above.
Yours faithfully,
:rudolf: Christmas and OS MS Addict :rudolf:
0
Comments
-
If that doesn't win at POPLA I'll eat my hat, you have the winning points
Go for itAll that is necessary for the triumph of evil is that good men do nothing. Edmund Burke Irish orator, philosopher, & politician (1729 - 1797).0 -
Thank you - I'm assuming it doesn't need any changes to it.. Fingers crossed!
:rudolf: Christmas and OS MS Addict :rudolf:0
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