LCP Harlesden Plaza Car Park fine

Coupon-mad

Hold fire and read the other Plaza threads first (I just edited my post above as something is niggling to make your appeal stronger). I'm sure there's more to say and it's on other threads - I think I wrote a POPLA appeal about this place.

lynneh

Ok...I'll have a look and see what I can find, thank you

lynneh

I have found the post Coupon-mad and am now trying to read through it to see how I can improve my own appeal !

lynneh

Is it this?
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.

Coupon-mad

Yes that's the one! I remember it better now and the signage was indeed dodgy & unlit at the time. But only use stuff if it's relevant to your case so you'll need to proof read it. Off the top of my head is this sort of thing true for your case?

''The driver did not see any signs at all when entering this car park on a rainy, dark evening''

''LCP's photos of a pole-top light 'not working' in 2011 do nothing to prove the lighting is clear now''

Is your NTK similarly flawed? Did you wait for the NTK letter?

If not you'll have to tidy it up a bit to be correct in your case.

You could add that the driver was there for a matter of minutes and you believe no grace period was allowed for the driver to read the signs. As keeper, you have seen no evidence of any period of parking observation so the driver could merely have stopped to read the signs then left, which is not a parking event. This PPC have not shown any evidence to the contrary.

And you can rebut PE v Beavis & Wardley. Tell the POPLA Assessor that the Beavis case is going to the Court of Appeal now and was a decision in small claims only, full of caveats and no case law whatsoever since there is nothing that supports a penalty in a consumer contract. This would be a breach of the UTCCRs.

lynneh

Yes, the driver was only there for 17 minutes. The driver had intended to go to Burger King which has a drive thru that is part of the car park. At that time of night it was closed and so the driver did not stop.
I'll have a proper look at your appeal and see how I can adapt it. Do you mind if I repost it on here?

Coupon-mad

No probs. Interesting to hear there's a drive-thru and I think I would add (maybe to the unclear/unlit signage part):


'I am aware that the driver went to the Burger King drive-thru that is part of the car park. At that time of night it turned out to be closed and so after checking there was no-one serving at the Burger King service hatch, the driver left. However this does add a point to my appeal. Where a car park includes a drive-thru, as the name suggests, this is not part of the car park at all. Driving through to fetch food (even if the driver finds out the shop has closed and they are too late) is not parking in the car park and the signage relating to any parking rules cannot relate to that part of the site nor any time spent there reading the menu from the driver's seat and approaching the service hatch by car. So I contend that for much of the time (which was only a matter of minutes altogether) the driver was outwith the 'car park' area covered by the unlit signs anyway and any remaining minutes are explained simply because the camera takes a misleading picture at the entrance and exit and shows no actual parking time. That plus the fact the signs were not readable at night means that there was no contract formed for parking, no consideration flowed between the parties and the terms on the signs were not capable of being read. Nor did a parking breach even occur as there can be no 'underpayment' for merely reading a menu then attempting to use the drive-thru at the other end of the car park, then finally making a decision to leave once it was clear the opening hours of the Burger King had ended. '

lynneh

Look what I found ...
http://forums.pepipoo.com/index.php?showtopic=83621&st=20&start=20

Coupon-mad

Oh yes, I remember that one now! I post as SchoolRunMum over there on pepipoo and you'll see I posted on that thread - and that LCP read the forums!


Helllooooo LCP! Come back for another dose of the same medicine & another POPLA bashing, have you?!

lynneh

Ah yes, I've just read the thread. Looking closer at this , it seems ridiculous that BK have a drive thru that is part of the car park and that there is no grace period .